PEOPLE v. WU

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Helen WU, Defendant and Appellant.

No. E007993.

Decided: October 24, 1991

Roberta K. Thyfault, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Pat Zaharopoulos, Supervising Deputy Atty. Gen., and Garrett Beaumont, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

I

INTRODUCTION

Helen Wu, also known as Helen Hamg Ieng Chau (defendant), was convicted of the second degree murder of her son, Sidney Wu (Sidney), following trial by jury.   Her motion for a new trial was denied and she was sentenced to a prison term of 15 years to life.   She filed timely notice of appeal, and contends that the court committed reversible error by (1) refusing to instruct the jury on the defense of unconsciousness, and (2) refusing to instruct the jury on her theory of the case.

Initially, we note that the facts presented at trial, while not in conflict as to certain specific events, did vary considerably as to whether defendant had “motherly” feelings toward the victim, her son, whether she was a “traditional” Chinese woman, and, based on the above-noted factors, whether the motive for his death was a desire for revenge against Sidney's father or guilt over having not taken good care of the child and fear that he would be ill-treated in the future.

The prosecution's theory seems to have been that defendant killed Sidney because of anger at Sidney's father, and to get revenge.   The defense's theory was that defendant believed that Sidney, who lived with his father in the United States, was looked down upon and was ill-treated by everyone except his paternal grandmother because he had been borne out of wedlock, and that when she learned that the grandmother was dying of cancer, she felt trapped and, in an intense emotional upheaval, strangled Sidney and then attempted to kill herself so that she could take care of Sidney in the afterlife.

The only issues on appeal are whether the trial court committed prejudicial error by refusing to give two instructions requested by defendant, one related to the defense of unconsciousness, and one related to the effect her cultural background might have had on her state of mind when she killed Sidney.

When the issue is whether it was error to give an improper instruction, on appeal “ ‘we must assume that the jury might have believed the evidence upon which the instruction favorable to the losing party was predicated, and that if the correct instruction had been given upon that subject the jury might have rendered a verdict in favor of the losing party.’ ”  (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 674, 117 Cal.Rptr. 1, 527 P.2d 353, quoting O'Meara v. Swortfiguer (1923) 191 Cal. 12, 15, 214 P. 975;  to same effect, see People v. Wilson (1967) 66 Cal.2d 749, 762–765, 59 Cal.Rptr. 156, 427 P.2d 820 regarding trial court error in omitting a requested instruction.)

Therefore, for purposes of this appeal, we shall set forth the evidence, which the jury might have found credible and upon which defendant's requested instructions were predicated.

II

FACTS

Defendant was born in 1943 in Saigon, China.   At the age of 19, in about 1962 or 1963, she moved to Macau.   She married and had a daughter, who was 25 years old at the time of the trial of this matter in February 1990.   In 1963, she met Gary Wu (Wu), the son of one of her friends.   That same year Wu went to the United States, and married Susanna Ku.   He opened several restaurants in the Palm Springs area.

After eight years of marriage, defendant was divorced, and became employed, writing statistics for greyhound races.   She was apparently betrothed to remarry in the mid 1970's, but her fiance developed lung cancer and died.   His sister, Nancy Chung (Chung), became defendant's close friend and confidante.   According to Chung, Chung's brother made her promise to help defendant because defendant was a kind, moral person, not greedy, but too trusting.

In 1978 or 1979, defendant was contacted by Wu, who had heard that she was divorced and had a daughter.   Wu told her his marriage was unsatisfactory because his wife could not have children.   According to defendant, Wu told her he planned to divorce his wife.   They discussed the possibility that defendant could come to the United States and conceive a child for Wu.   Defendant believed Wu would marry her after he divorced his wife.   Defendant was in love with Wu and Wu gave defendant money to deposit in a joint bank account and sent her $20,000 so she could apply for a visa to the United States.

In November 1979, defendant came to the United States.   When defendant arrived, he hugged and kissed her, told her his divorce proceedings would be completed soon and he definitely would marry her.   Defendant lived with Wu's mother.   Wu's wife believed she was a family friend.   At Wu's request defendant had brought $15,000 of the money he had sent her and they opened a joint account together.

In December 1979 or January 1980, Wu and his wife Susanna were divorced;  however, Wu did not tell defendant that he had obtained a divorce.   Defendant conceived a child by Wu in the early part of 1980, and then moved into an apartment, where she was visited by Wu.   After the child, Sidney, was born in November 1980, Wu apparently made no overtures regarding marriage.   Depressed, defendant, who could not speak English, could not drive, and who had no support system in the United States, told Wu she intended to return to Macau, apparently expecting that this information would cause him to try to persuade her to stay.

Wu did not try to persuade defendant to stay, so in February 1981, she returned home but left Sidney with Wu.   She could not take the baby because no one knew she had a baby and she and Sidney would have been humiliated in China.   She told only her closest friend, Chung, who had already learned of defendant's pregnancy from Chung's daughters who were going to college in the United States, that she had borne a child out of wedlock;  such a thing was apparently considered to be particularly shameful among people of defendant's culture.

From 1981 to 1988 defendant regularly asked Wu to bring Sidney to visit her, but to no avail.   In 1981, Wu said he could only come for the summer and defendant told him she wanted Sidney to stay and if he could not, then she did not want to see him because it would be harder after he left.   In 1984, Wu asked defendant to visit him but she did not want to come until she was married, then she and her son would have dignity and status.

In September 1987, Wu told defendant he needed money for his restaurant business.   She finally told him that if he would bring Sidney to visit her, she would loan him money for his restaurants.

In January 1988, Wu brought Sidney, who was then seven years old, to visit defendant in Hong Kong.   Defendant showed him $100,000 cash and a receipt for a certificate of deposit of a million Hong Kong dollars.   Both the cash and the deposited funds had been loaned to defendant by Chung, after defendant admitted to Chung that she had lured Wu into bringing Sidney to see her with the promise of a loan.   On that visit, Wu proposed marriage, but defendant declined, depressed over the fact that the marriage proposal seemed to be because of “her” money, and because she did not know if Wu were still married or not.   Defendant was so discouraged by these beliefs that she attempted to throw herself out of the window of Chung's apartment, but was restrained by Chung, Chung's daughter, and a servant.

According to Chung, Wu, while in Hong Kong, suggested that if Chung invested money in his restaurant business, he could be her sponsor for American citizenship, because the communists would be taking over control of Hong Kong in a few years.   Chung declined, saying she did not know anything about the restaurant business.   Wu then said there was another way to help her, and when she asked how, he said he could marry her.   Chung asked, “What about Helen?”   Wu replied by indicating that there was enough time for him to first marry Chung and to later marry defendant.   Wu later wrote Chung a letter suggesting the marriage, which he followed up with a telephone call asking if Chung had received his letter.   Chung politely cooled these advances by denying she had received the letter, which, however, she saved, and which was produced at trial.   Chung did not tell defendant of Wu's advances.

During the next year defendant worked and traveled with Chung.   She wanted to see Sidney but she did not know if Wu was still married and did not want to upset her son's life.   In August 1989, defendant, who was on a vacation trip to Las Vegas and San Francisco with Chung, as Chung's guest, apparently heard that Wu's mother, Sidney's paternal grandmother, was terminally ill, so she came to Palm Springs to visit.   While there, she was told by the grandmother that when the grandmother died, she, defendant, should take Sidney because Wu would not take good care of him.   She was given similar advice by Sandy, Wu's cousin.

Toward the end of August, Wu told defendant that they were going to Las Vegas.   Defendant stated she did not want to go.   Wu told her it was important that she go, as “she was the main character” because they were going to be married.   Defendant and Wu were married on September 1.   On September 5, they went to Los Angeles to consult an attorney about immigration law.   Defendant, following the marriage and consultation, was still of the opinion that Wu had married her because of his belief that she had a lot of money.   During the drive home from Los Angeles, this belief was reinforced by Wu's comments.   When she asked if he had married her for her money, he responded that until she produced the money, she had no right to speak.   Defendant asked Wu whether the marriage was not worthwhile simply for the purpose of legitimizing Sidney, and Wu replied that many people could give him children.   Defendant told Wu he would be sorry.   She later explained that remark meant that she was thinking about returning to Macau and killing herself.

After the trip to the lawyer, defendant told Wu to get her a plane ticket for September 16 so that she could return to Macau.   She asked him not to let Sidney know that she was leaving, because she wished to have ten days of happiness with her son.   Wu wanted to know if defendant was going to get the money, which made her very angry.   Defendant gave Wu $6,300, her own money, and told him he liked money too much.

On September 9, the evening of the killing, defendant was playing with Sidney.   Earlier that day defendant had interceded on Sidney's behalf when Wu hit Sidney when Sidney would not get out of the family car.   Wu had gone to the restaurant to put on two birthday parties, apparently for his friend Rosemary.   Defendant and Sidney played and talked, and defendant told Sidney that she knew what he liked because of the mother-child bond between them.

Sidney told defendant that Wu said she was “psychotic” and “very troublesome.”   He then told defendant that Rosemary was Wu's girlfriend, and that the house they lived in belonged to Rosemary.   He also told her that Wu made him get up early so Wu could take Rosemary's daughters to school in the morning and if he did not get up, Wu would scold and beat him.   He said Wu loved Rosemary more than him.   Defendant began to think about what she had been told by Sidney's grandmother and Sandy concerning her taking care of Sidney.   She began to experience heart palpitations and to have trouble breathing.   She told Sidney she wanted to die, and asked him if he would go too.   He clung to her neck and cried.   She then left the bedroom, and obtained a rope by cutting the cord off a window blind.   She returned to the bedroom and strangled Sidney.   According to defendant, she did not remember the strangling itself.   She stopped breathing, and when she started breathing again, she was surprised at how quickly Sidney had died.   She then wrote a note to Wu to the effect that he had bullied her too much and “now this air is vented.   I can die with no regret,” but did not mention Sidney's killing in the note.   She then attempted to strangle herself, failed, went to the kitchen and slashed her left wrist with a knife, and then returned to the bedroom and lay down next to Sidney on the bed, having first placed a waste-paper basket under her bleeding wrist to catch the blood so that the floor would not be dirtied.

Wu returned home several hours later, and discovered defendant and Sidney.   He called the police, and the paramedics were also summoned.   The police determined that Sidney was dead.   The paramedics tested defendant's vital signs, and determined that although her pulse and blood pressure were normal, she exhibited a decreased level of consciousness.

Dr. Michael Mostyn, the doctor who saw defendant when she was taken to the emergency room, testified that she had cut the veins in her wrist, but not the arteries, which are normally deeper beneath the surface than the veins, and that venous bleeding, if not irritated or prevented from clotting with the use of hot water, would stop, and that in his opinion a person who had simply slashed their veins, rather than their arteries, would not die.   He also testified that this fact was not common knowledge to the “man on the street.”

Dr. Saul Faerstein, a physician specializing in psychiatry, testified, after reviewing pictures of the wounds on defendant's wrists, that they did not appear to have been inflicted by a “malingerer,” that they were the type of wound which a layperson, particularly one who was agitated, severely depressed, or confused, might make in a serious attempt to commit suicide.   He also testified, as to the decreased state of consciousness in which defendant was found, that defendant might have fainted and then remained in a reduced level of consciousness, but that “we're talking about something more than fainting here,” and “there are many, people may disassociate, people may have emotional reactions which are acute and severe, where suddenly they become confused, as a result of shock, as a result of some acute shock.   Clearly the circumstances of what was going on with her son were overwhelming kinds of trauma that she was experiencing, and I believe that the shock she was experiencing were [sic] traumatic but psychological in or[i]gin.”

Chung testified that two days after Sidney's death, she received a telephone call from Wu, who was fishing for information about how defendant had accumulated the money he believed she possessed.   Chung evaded his questions, and then Wu told her that defendant had strangled Sidney and “committed” suicide, but that defendant had been saved.   Chung then hired an attorney in Hong Kong to help defendant.

Defendant was charged with murder (Pen.Code, § 187) and, following a trial by jury, was convicted of second degree murder.

III

DISCUSSIONA. The Trial Court Committed Reversible Error by Refusing To Instruct the Jury on the Defense of Unconsciousness

 Defendant contends that the trial court committed reversible error by refusing to give the following instruction on unconsciousness:

“A person who commits what would otherwise be a criminal act, while unconscious, is not guilty of a crime.

“This rule of law applies to persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or because of an attack of [psychomotor] epilepsy, a blow on the head, the involuntary taking of drugs or the involuntary consumption of intoxicating liquor, or any similar cause.

“Unconsciousness does not require that a person be incapable of movement.

“Evidence has been received which may tend to show that the defendant was unconscious at the time and place of the commission of the alleged crime for which [he] [she] is here on trial.   If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was conscious at the time the alleged crime was committed, [he] [she] must be found not guilty.”   (CALJIC No. 4.30.)

Defendant contends that the evidence that due to her extreme emotional and psychological distress she was not conscious of her act of strangling her child was sufficient evidence to justify giving this instruction.   The People contend that there was no evidence of unconsciousness “deserving of the jury's consideration” to justify giving the instruction, given that defendant's own testimony, and that of the defense experts, was that she consciously strangled the child so that they could be united in death and a post-death afterlife, and also because she testified that she strangled her son, and told other witnesses “how quickly her son died along with details surrounding the strangulation.” 1

During discussion of proposed jury instructions with the court, the prosecuting attorney argued that the evidence showed that defendant herself had “testified that she strangled her son.   She told both doctors that she strangled her son and could not remember if he struggled or not.   Told one doctor how quickly he died.”   Based on this evidence, the prosecuting attorney argued that “[s]o I don't see, given the totality of the evidence, that she was unconscious as defined in the instruction in this case.   And I don't think the jury instruction should be given for that reason.”

Defendant's attorney pointed out to the court that the Use Notes accompanying CALJIC 4.30 indicated that unconsciousness included not only a state of coma or immobility, but also a condition in which the subject acts without awareness.   The trial court refused to give the instruction, stating:

“I don't think it's appropriate under the facts of the case, so I'm going to refuse it.

“4.30.  I think with the testimony from the witness herself, all the things that she did warrants a claim she was not unconscious at the time.   She may have blocked out some details which she herself testified that she strangled and she did tell the doctor that she was surprised how easily he died.”

Defendant's attorney then noted that there was other evidence presented which the jury might believe and from which it might conclude defendant was unconscious at the time of the strangulation, even though the court might not believe it or from which the court would not make a similar conclusion, and that therefore the instruction should be given.   The trial court did not change its ruling.

After reviewing all the evidence related to defendant's awareness of her act of strangling Sidney at the moment of the act, we agree with defendant that there was sufficient evidence to require the giving of an instruction on unconsciousness.

According to Dr. Ching–Piao Chien, M.D., one of defendant's expert witnesses and a board certified psychiatrist:

“Q Did Helen tell you what were the details of the strangulation of Sidney?

“A No.   She did not remember the act afterward.

“Q Did you find that to be unusual?

“A Not unusual.   When somebody has such a heat of passion or emotional status, under such a strong stress, it is not uncommon to have that kind of memory loss.   But sometime we call that as a fugue state or dissociation or dissociated disorder.

“Q Would you spell that word you called fugue state?

“A F-u-g-u-e.

“Q What does that really mean in laymen's terms?

“A Fugue state is kind of a mental status that when somebody cannot understand the reality that they are facing, there's a kind of automatic mechanism that change the mentality into different state.   Like dreaming state or different state that usually don't retain the memory.

“To give you some example, if a child is killed in front of the mother by a truck, brain's splattered—I have seen a patient, I mean the mother, who was supposed to have been in deep shock or grief, suddenly start laughing like as if nothing happened.   And laughing is a kind of counter mechanism of her grief shock or sadness that she cannot accept.

“Q Well, based upon what you heard from Helen and reviewed from the materials, was Helen in a fugue state when she strangled Sidney?

“A Obviously.

“Q Why is it obvious?

“A Because that kind of emotion, mixed emotional of the despair, anger, disappointment, depression, sadness, hopelessness, everything all sudden come up to her mind that she thought the only way out is to go to the heaven together with the son.   And that is not kind of comfortable thing for people to think long time ahead or to plan.

“So obviously, she was under a kind of heat of emotion or I call it heat of passion that went out like a dreamy state.”

According to Dr. Chien, “She did not remember exactly how she pick up the scissors or cut the rope.   But she remember after the strangulation of Sidney how quickly a boy could die.”  (Emphasis added.)

Dr. Chien also testified, during cross-examination:

“Q She perceived that she was going to kill her son first, clearly because that's what happened before she wrote the note?

“A Right.

“Q So she made a decision;  right?   She had to decide.

“So basically, do you agree that—and I'll use the word ‘decide to kill,’ So she had—do you agree she had to make that decision, go through that thought process?

“A Yeah.   I'm sure all kind of act of homicide, regardless of whether it's a premeditated or—

“Q Wait a minute, Doctor.   We're talking about this defendant in this case.   We're not talking about someone else.   This case.   Okay?

“The client had to decide to kill.   And then she just had to decide how to kill.   So I'll use the word ‘how.’

“That is, is she going to shoot the boy, is she going to strangle him, is she going to poison him, or is she going to run over him with a truck or whatever.

“I'm not saying she went through that process, but she certainly had to decide how to do it.   Right?

“A She did not remember how she pick up the scissors, but obviously under that kind of frugue [sic] state actionwise, she pick up the scissors and cut the rope.

“Q Right.

“A But I wouldn't know whether she think about how to kill with the rope like you are talking about.

“Q Doctor, she told you she picked up the scissors?

“A Yes.

“Q So she had to think about it before she did it.   At least she had to say, ‘Ah, there is a pair of scissors.   Let me pick them up.[’]  Right?[ ]  Or—

“A Sometime there's a behavior in the human being that they did something without really knowing what is going on.

“Q Doctor, nonetheless, she still, in order to kill the boy, she first of all had to decide to kill him.   Then she had to decide how to do it.   Right?

“A Actionwise, yes.   That's a fact.

“Q All right.

“A However, I'm not sure about the mentality process, mental process you are talking about.”  (Emphasis added.)

According to Dr. Terry Gock, a clinical psychologist:  “And she said that she was not, unclear about what happened next, but she knew what she did was that she, she took, took the string from the blinds and strangulated him and then proceeded to kill herself with strangulation, which did not, not succeed.”

Dr. Gock then agreed that defendant must have made a decision to kill Sidney, and then decided what instrumentality to use, where to get it, and when to use it, but noted that the way the questions were being presented by the prosecuting attorney suggested “a lot of thought processes,” “[a]nd what I'm saying is that when one is emotionally distressed or one's feelings are all worked up, a lot of times we don't think in that kind of ways and we do things at, that afterwards we may be able to sort it out in that kind of a way, but at that time they are not separate elements like that.”  (Emphasis added.)

Dr. Gock testified that:

“A Helen was relating [in her sessions with him] that, that, that the sequence of what happened that night, in regard to the death of Sidney, was not very clear.   However, she felt she—what she remembered was that she cut some rope from the window blinds and strangled Sidney.   And she sort of recalled that she was sort of puzzled or she thought that it was so easy to, to kill Sidney.”

Defendant herself testified as follows:

“Q What did you do after you got the piece of rope?

“A I only recall that I strangled myself and I also strangled my son.

“Q Which did you do first?

“A I don't recall.

“Q Do you remember where Sidney was when you strangled him?

“A I don't even know where he was.

“Q Did you strangle him with the piece of rope from the blinds?

“A Yes.

“Q Do you remember talking to some doctors about this?

“A I don't recall.

“Q Okay.   What did Sidney do when you were strangling him?

“A I don't know what happened.   I don't even know.

“Q Do you remember telling Dr. Chien that, how quickly and easily Sidney died?

“A I don't recall.

“Q Do you remember telling Dr. Gock that you strangled Sidney but you do not recall him as struggling against you?   Do you remember that?

“A Actually, I don't even know what happened myself.

“Q Well, didn't you tell Dr. Chien that you had trouble breathing at that time?

“A Yes.

“Q Did you have trouble breathing at the time you were strangling Sidney?

“A At night already I could not breathe.   Also I had headaches, severe headaches.

“Q What happened after you strangled Sidney?

“A I don't recall.   I got knife and rope—I strangled myself and I strangled my son.   But how, I really don't know.”

“․

“Q But you don't remember the actual strangulation of Sidney.   Is that what you're saying?

“A That's correct.

“Q But Mrs. Wu, can you explain to us why you remember talking with Sidney, remember going and cutting the rope, you remember writing a note, and in fact have identified the note, you remember going to the sink and cutting your wrist, you remember going back to the sink and cutting your wrist, you remember going back into the bedroom and worrying about getting blood on the floor, you remember laying down with Sidney?

“Why don't you remember the actual strangulation of Sidney if you remember everything else?

“A I don't know.  (Emphasis added.)

John Bernard Melia, a firefighter/paramedic who responded to Wu's call to 911, testified that after placing defendant on a gurney, he first tested her level of consciousness.   He applied three tests to defendant:  (1) the hand drop test, “basically a field type of evaluation where the hand is raised above the head and I let go of that, and if the hand strikes the face, the person is basically considered to be a decreased level of consciousness.   If the hand is to land beside, above, below, then that person is basically aware of the situation and they're taking action not to hit their face so that we determine their level of consciousness is okay,” (2) a sternal rub, in which the knuckles of the hand are placed in mid-chest and rubbed moderately hard, which causes pain, and (3) an ammonia inhalant.   The result of these tests was that defendant did not respond to the hand drop or sternal rub, but did open her eyes and moved her head a little bit in response to the ammonia inhalant test.

After checking her level of consciousness, he then determined that she had normal blood pressure, a strong and regular pulse, and respiration of “20.”   Mr. Melia, who observed minimal blood loss at the scene expressed the opinion, when asked if defendant appeared to be in shock, that defendant appeared to have “a decreased level of consciousness,” that this level of consciousness did not change during the trip to the hospital, and that he could not tell why defendant's level of consciousness was decreased, but that it did not appear to be from loss of blood.   He also stated that oxygen was administered to defendant in the hope and expectation that it would improve her level of consciousness, but that it did not appear to cause any significant increase in defendant's level of consciousness.

The above evidence was sufficient to have supported a finding by the jury, if they had been instructed on unconsciousness, that although defendant might have consciously contemplated killing Sidney before she actually strangled him, the actual act of strangulation was committed while she was in a fugue state, i.e., in a state in which she acted without conscious thought and was unconscious of her act of strangulation at the time she committed it.   A reasonable jury could have further concluded that the reason defendant “knew” she had strangled Sidney was not because she actually remembered the strangulation based on a conscious awareness of her acts as she strangled the child, but because she inferred, given the circumstances, that she had strangled him.

 Obviously, the prosecuting attorney and the trial court were very influenced by the fact that defendant “knew” she had strangled Sidney, as well as by the fact that she remembered information related to her behavior and thoughts immediately preceding and following the strangulation of her child.   However, if, indeed, defendant was unconscious while strangling Sidney, the fact that she had planned Sidney's death, and had even obtained the rope immediately before using it to strangle the child, would not be a sufficient basis upon which to deny giving the requested instruction on unconsciousness, given that to support a conviction for a criminal act there must be a “joint operation of act and intent.”  (Pen.Code, § 20;  People v. Green (1980) 27 Cal.3d 1, 53–54, 164 Cal.Rptr. 1, 609 P.2d 468;  People v. Wilson, supra, 66 Cal.2d at pp. 760–761, 59 Cal.Rptr. 156, 427 P.2d 820.)

For example, in People v. Wilson, defendant was convicted of the murder of his wife and one of her friends.   Defendant and his wife, Ann, had separated, and she had filed for a divorce.   One evening, defendant called her apartment and the telephone was answered by one of three men who were visiting Ann.   Shortly after defendant's call, he drove to Ann's apartment and broke in the front door.   Ann fled into the bathroom, first tossing a pistol and some bullets on the bed.   One of the men attempted to load the gun, without success.   Defendant appeared in the doorway and pointed a shotgun at the man, who dropped the pistol and disclaimed any knowledge of, or involvement in, the matter.   Defendant told him to get out then.

Defendant apparently shot down the door of the bathroom, then shot Ann in the chest and in the hip, and also shot the two other men, wounding one and killing the other.

The police, who had been called by Ann before defendant had gained entry, arrived and questioned him.   Defendant told them in detail about the events, and testified at trial about breaking in, letting one man leave, and firing and wounding the other.

However, he also testified that he had no recollection of firing the shots which killed Ann and the other man, nor did he know what happened during the shootings.  (66 Cal.2d at pp. 755, 756, 59 Cal.Rptr. 156, 427 P.2d 820.)

Defendant raised two defenses, one of which was that he was unconscious at the time he committed the homicides and was therefore incapable of forming the necessary intent.   He requested an instruction on unconsciousness, which was refused.  (Id. at p. 756, 59 Cal.Rptr. 156, 427 P.2d 820.)

On appeal, the California Supreme Court concluded that it was “serious error” to refuse the requested instruction (id. at p. 760, 59 Cal.Rptr. 156, 427 P.2d 820), which would have been a complete defense to the crimes with which defendant was charged.  (Id. at p. 761, 59 Cal.Rptr. 156, 427 P.2d 820.)   It noted that defendant had testified that he did not remember shooting either victim, and that he was distraught by the events preceding the shootings, and then stated that “[f]or the purposes of determining whether the instructions proffered by defense counsel should have been given, the trial court was bound to take this testimony as entirely true [citations], regardless of whether it was of a character to inspire belief.  [Citations.]”  (Id. at p. 762, 59 Cal.Rptr. 156, 427 P.2d 820.)

If anything, the facts of this case are even stronger than the facts of Wilson.   In Wilson, there was only the defendant's testimony that he did not remember shooting the two victims.   Here, defendant too testified she did not remember strangling Sidney, but in addition there was expert testimony that defendant “obviously” had been in a fugue or dissociated state during the strangulation itself.   However, just as did the defendant in Wilson, defendant here also recalled certain of the events leading up to the killings, including the fact that she had obtained the murder weapon.   It was apparently the existence of this recollection of events immediately preceding the homicides in both Wilson and the case here that made it difficult for the trial courts in both cases to reconcile the existence of such conscious recollection of the preceding events with the defendants' claims that they did not recall the homicides themselves.

The analytical problem caused by defendants who seem to be aware of what they have done immediately before and following the criminal act, but who also present evidence that they were not conscious during the act itself, is not uncommon.   For example, in People v. Moore (1970) 5 Cal.App.3d 486, 85 Cal.Rptr. 194, defendant was convicted of second degree murder.   On appeal, the reviewing court concluded, even though the issue was not raised by defendant, that the trial court committed reversible error by failing to give an instruction on unconsciousness as a complete defense to the charge against defendant.   The giving of such an instruction was warranted by psychiatric testimony by defendant's expert that “defendant was in a ‘schizophrenic fugue state’ when he shot [the victim];  that his acts were ‘an automatic reaction without consideration;’ as, ‘in a dream without any thought,’ ” (id. at p. 492, 85 Cal.Rptr. 194), despite the fact that promptly after the shooting, defendant told a neighbor, and then a police officer, that he had shot the victim, that defendant appeared distraught but lucid after the shooting, and that the prosecution's expert witness testified that although defendant was a schizophrenic, he was “ ‘inferentially aware’ ” of what he was doing at the time of the shooting, i.e., he knew he was firing bullets into the body of the victim and that he intended to do so.  (Id. at p. 489–490, 85 Cal.Rptr. 194.)

 The operative principle in Moore and Wilson is simply that a defendant is entitled to an instruction on any defense which is supported by substantial evidence (People v. Wickersham (1982) 32 Cal.3d 307, 324, 185 Cal.Rptr. 436, 650 P.2d 311) and that in determining whether such evidence exists, the trial court must not weigh the credibility of witnesses, nor focus on the fact there is conflict in the evidence, but must resolve any doubts as to the credibility and sufficiency of the evidence in favor of the defendant.   (Ibid.)

Here, just as in Moore, an instruction on unconsciousness was clearly warranted.   The evidence that defendant was not conscious of strangling Sidney, and that she acted in a “fugue” state during the actual strangulation, was substantial and of such nature that a jury could reasonably conclude therefrom she was not conscious when she killed Sidney.

The People rely on People v. Heffington (1973) 32 Cal.App.3d 1, 107 Cal.Rptr. 859 for the proposition that there was not sufficient evidence to justify giving an instruction on unconsciousness.   However, they simply cite Heffington without any analysis of its facts, undoubtedly because such analysis would demonstrate that Heffington does not support their position.

In Heffington, defendant was convicted of assault with intent to commit murder after he attacked another man with a knife during what had begun as a fist fight.

At trial, defendant produced evidence that before the fight he had drunk five beers, and had complained of a headache and double vision.   He also testified that the events of the fight were somewhat hazy, but he did remember drawing the knife with the intent to use it in his own defense.   He also testified about a series of head injuries he had suffered before the fight, and about his alleged decreased tolerance to alcohol.  (Id. at pp. 7–8, 107 Cal.Rptr. 859.)

Two experts also testified.   Neither testified that defendant lacked consciousness or acted in a state of automatism, and neither expressed an opinion that defendant lacked awareness of his actions before and during the fight.  (Id. at p. 9, 107 Cal.Rptr. 859.)   One testified that “paradoxical” intoxication, even if it existed, suggested not even a momentary loss of awareness.

Defendant requested an instruction on unconsciousness, which was refused.   On appeal, the reviewing court concluded that the refusal to give the requested instruction was not error in light of two principles.   First, the court noted, with no further exposition, that unconsciousness is a complete defense except where it is caused by voluntary intoxication, citing, among other things, Penal Code section 26, subdivision 5;  People v. Wilson, supra, 66 Cal.2d 749, 761, 59 Cal.Rptr. 156, 427 P.2d 820.  (Id. 32 Cal.App.3d at p. 8, 107 Cal.Rptr. 859.)

Second, after noting that a defendant is entitled to a jury instruction on any theory, no matter how remote or incredible, so long as it is supported by any evidence deserving of any consideration whatsoever (ibid.), it concluded that the evidence produced by defendant, which indicated a “hazy” recollection of the fight, including the fact that he drew his knife to use for protection, “fell far short of a claim or description of unawareness coexistent with the fight.   In short, there was no claim or description of coexistent unconsciousness, either from the psychiatrists or defendant.”  (Id. 32 Cal.App.3d at p. 10, 107 Cal.Rptr. 859.)

Here, of course, defendant had no recollection, not even a hazy one, which was “coexistent” with the strangulation.   In addition, there was expert testimony that defendant had “obviously” been in a fugue or dissociated state, i.e., a state in which she acted without conscious awareness during the strangulation.   Thus, the facts of Heffington are clearly distinguishable from the facts here.

 In conclusion, because the jury was not instructed on unconsciousness, despite the existence of evidence to support the giving of such an instruction, and because the issue of unconsciousness was not resolved adversely to defendant under the other instructions given, we must reverse her conviction.   (People v. Edwards (1985) 39 Cal.3d 107, 116–117, 216 Cal.Rptr. 397, 702 P.2d 555;  People v. Molina (1988) 202 Cal.App.3d 1168, 1175–1176, 249 Cal.Rptr. 273.)

B. Upon Retrial, the Trial Court Should, if so Requested, Instruct the Jury on How Evidence of Defendant's Cultural Background Relates to Defendant's Theory of the Case

Defendant contends that the trial court erred by refusing to give an instruction which pinpointed a significant aspect of her theory of the case, i.e., an instruction which told the jury it could choose to consider the evidence of defendant's cultural background in determining the presence or absence of the various mental states which were elements of the crimes with which she was charged.   Because we have already determined that the judgment must be reversed because of the failure to give an instruction on unconsciousness, we will address the issue of the propriety of an instruction pinpointing the cultural background theory of defendant's case for purposes of guiding the trial court on retrial.

Defendant requested the following instruction:

“You have received evidence of defendant's cultural background and the relationship of her culture to her mental state.   You may, but are not required to, consider that the [sic] evidence in determining the presence or absence of the essential mental states of the crimes defined in these instructions, or in determining any other issue in this case.”

At trial, the prosecutor objected to this instruction on the ground that “it's real touchy, in a major case, to be messing around with non-pattern jury instructions, ․  People smarter than myself have put together all the pattern jury instructions.   I think they have covered every conceivable type of crime, certainly in this case they have, and I don't think that we need to be giving the jury extra instructions.”

In addition, the People stated the concern that there was no appellate law on the subject of instructions on “cultural defenses,” and that “the problem, apparently, to me, is that the jury has heard evidence about that, and whether we called it cultural defense, I don't know, but they certainly have heard the word ‘culture’ probably a thousand times in this trial;  maybe not a thousand, but hundreds.”

“So from that perspective, I assume counsel can argue, well, hey, you know, now that we've talked about it, we've got to give them some guidance of what to do with it.   But I still oppose it, doesn't it [sic] make any sense.   I just think we are making law that we simply are not in a position to make.   There is no guidance in the appellate courts as far as I know on the issue of cultural jury instructions or cultural defense.   I think the two pattern mental state instructions 3.31.5, 3.32 cover that as best as they can be covered.”

The trial court expressed the concern that the instruction would be “telling [the jury] that is the law.”   Although defendant's attorney specifically pointed out that the instruction merely told the jury that it could either consider or not consider the evidence of cultural background in determining defendant's mental state at the time of the crime, the trial court disagreed that that was the instruction's effect.

Ultimately, the court refused to give the instruction, commenting that it did not want to put the “stamp of approval on [defendant's] actions in the United States, which would have been acceptable in China.”

On appeal, the People do not contend that the instruction should not have been given because there was no established appellate law on such an instruction, but instead contend that failure to give the requested instruction was not error, because (1) defendant's defense as to mental states was sufficiently covered by the other instructions given;  (2) “[n]either an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice required for murder,” citing Penal Code section 188;  (3) the evidence that defendant had the values and motives of a traditional Chinese mother was contradicted by other evidence;  (4) the prosecution's expert noted that nothing in Chinese culture or religion encouraged filicide;  and (5) the instruction essentially directed “the jury's attention to particular testimony for its consideration in determining a reasonable doubt on a disputed factual issue.”

 As to points (3) and (4) of the People's argument, it is a well-accepted principle of law that the fact that there may be a conflict in the evidence in no way obviates the need to give an otherwise appropriate jury instruction;  it is, after all, the jury's duty to sort through such conflicting evidence.  (People v. Geiger (1984) 35 Cal.3d 510, 531, 199 Cal.Rptr. 45, 674 P.2d 1303;  People v. Lemus (1988) 203 Cal.App.3d 470, 477, 249 Cal.Rptr. 897.)

 As to point (5), the instruction, by its own terms, did not direct the jury's attention to “particular” testimony, i.e., it did not focus the jury's attention on the testimony of a particular witness.2  Instead, it directed the jury's attention to conflicting evidence related to the defendant's theory that her mental state at the time of the killing had been affected by her cultural background and to the prosecution's theory that, in fact, defendant was not a traditional Chinese woman, had not been affected by the relevant cultural influences, and had, instead, been motivated by a desire for revenge against Sidney's father rather than by a mother's love.

 As to point (2), we assume that the People, by stating that “[n]either an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice required for murder,” are implicitly attempting to argue that the instruction requested by defendant was an inaccurate statement of the law.   While the above quoted statement is true, we fail to see how it relates to the instruction requested by defendant.   Defendant did not present evidence that she was unaware of the general body of laws regulating society, or that she had acted with or without regard to such general rules of behavior.   In fact, during closing argument, her attorney specifically stated that he was asking the jury to apply only the laws of the state of California to the facts of defendant's case.   But he did argue that she was, at the time of the killing, in a highly overwrought emotional state, and that her emotional state could be explained by reference to the effect of her cultural background on her perception of the circumstances leading up to and immediately preceding the strangulation.

 As to point (1), the People simply state, in the nature of an ipse dixit, that the failure to give the requested instruction was not prejudicial because the defense it raised was sufficiently pinpointed by other instructions.   The People do not attempt to make any analysis of how these other instructions (which they simply string-cite with record references, and do not quote) “pinpointed” for the jury the fact that it could, in fact, consider defendant's cultural background when considering whether she had formed any mental state at issue.

The instructions cited by the People are:  (1) the People have the burden of proof to show the requisite mental state as an element of the crime, (2) the People have the burden of persuasion that the defendant's actual mental state was “malice aforethought,” (3) CALJIC No. 8.10, “Murder—Defined,” (4) CALJIC No. 8.11 “Malice Aforethought—Defined,” (5) CALJIC No. 8.20, “Deliberate and Premeditated Murder,” (6) CALJIC No. 8.31, “Second Degree Murder—Killing Resulting From Unlawful Act Dangerous to Life,” (7) CALJIC No. 8.40, “Voluntary Manslaughter—Defined,” (8) CALJIC No. 8.42, “Sudden Quarrel or Heat of Passion and Provocation Explained,” (9) CALJIC No. 8.43, “Murder or Manslaughter—Cooling Period,” (10) CALJIC No. 8.44, “No Specific Emotion Alone Constitutes Heat of Passion,” (11) CALJIC No. 8.45, “Involuntary Manslaughter—Defined,” (12) CALJIC No. 3.30 (1989 rev.) “Concurrence of Act and General Criminal Intent,” (13) CALJIC No. 8.46, “Due Caution and Circumspection—Defined,” (14) CALJIC No. 8.50 “Murder and Manslaughter Distinguished,” (15) CALJIC No. 8.51, “Murder and Manslaughter Distinguished—Nature of Act Involved,” (16) CALJIC No. 8.71, “Doubt Whether First or Second Degree Murder,” (17) CALJIC No. 8.72 “Doubt Whether Murder or Manslaughter,” (18) CALJIC No. 8.73, “Evidence of Provocation May Be Considered in Determining Degree of Murder.”   None of these instructions approach telling the jury that the evidence of defendant's cultural background may be considered by the jury in relation to certain elements of the crime with which she was charged or lesser included offenses.

It is error to refuse to give an instruction requested by a defendant which “directs attention to evidence from ․ which a reasonable doubt of his guilt could be engendered.”  (People v. Sears (1970) 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 465 P.2d 847;  People v. Hall (1980) 28 Cal.3d 143, 159, 167 Cal.Rptr. 844, 616 P.2d 826.)   In fact, “[a] defendant is entitled to an instruction relating particular facts to any legal issue.   [Citations.]”  (People v. Sears, supra, 2 Cal.3d at p. 190, 84 Cal.Rptr. 711, 465 P.2d 847.)

In People v. Sears, the defendant was convicted of the first degree murder of his stepdaughter and the attempted murders of his wife and mother-in-law.   On appeal, the defendant contended, among other things, that the trial court erred by refusing to give the following instruction:

“ ‘In determining whether in regard to premeditation and deliberation reasonable doubt exists, as that term has been previously defined, you may consider any of the following evidence:

“ ‘1. The lack of motive;

“ ‘2. The defendant's prior relationship with the child;

“ ‘3. The defendant's prior consumption of alcoholic beverage;

“ ‘4. The presence of the defendant at King's Tavern immediately prior to his going to the scene;

“ ‘5. The defendant's parking of his vehicle in sight on Merriman Avenue prior to entry of the cottage;

“ ‘6. Any other evidence tending to prove reasonable doubt.’ ”  (Id. at pp. 189–190, 84 Cal.Rptr. 711, 465 P.2d 847.)

The California Supreme Court held that California courts “have often approved instructions pointing out the relevance of certain kinds of evidence to a specific issue [citation],” and that lack of motive, lack of furtiveness, and the defendant's relationship with his victims were all relevant on the issue of premeditation and deliberation, and that “no reason appears why a defendant upon request should not be entitled to a specific instruction pointing out that” such circumstances might be considered by the jury on the issues of premeditation and deliberation.  (Id. at p. 190, 84 Cal.Rptr. 711, 465 P.2d 847.)   The court further held that even if the proffered instruction was defective in form in some respects, upon retrial the trial court should give appropriate instructions if requested to do so.  (Ibid.)

The same rationale applies to the instruction here.   There is no reason why defendant's requested instruction, simply pointing out that the jury may consider evidence of her cultural background in determining the presence or absence of the relevant mental states, should not have been given.

Thus, none of the five arguments raised by the People on appeal suffice to show that the trial court properly refused to give the requested instruction.

However, as noted above, at trial the prosecuting attorney and the trial court apparently believed they should not give the instruction because there was no appellate law on the subject.   In the interest of resolving this issue for purposes of retrial, we now consider whether the instruction should have been refused for reasons other than those presented upon appeal by the People.

 As quoted in footnote 2, “[I]t is error for a court not to give an instruction if that instruction is both correct in law and applicable on the record;  it is not error if either condition is lacking.”  (People v. Benson, supra, 52 Cal.3d 754, 807, 276 Cal.Rptr. 827, 802 P.2d 330.)   Conversely, if an instruction is either legally incorrect or inapplicable to the facts of a case, it should not be given.

Here, the instruction, assuming it is legally correct, is clearly applicable to the facts of this case, as there was ample evidence of both the defendant's cultural background, and how it could have affected her mental state at the time of the charged offense.

 The issue then is whether it was a correct statement of the law that the jury may consider evidence of defendant's cultural background in determining the presence or absence of the “essential mental states of the crimes defined in these instructions, or in determining any other issue in this case.” 3

The essential mental states at issue here were (1) premeditation and deliberation, (2) malice aforethought, and (3) specific intent to kill.   Generally speaking, all relevant evidence is admissible (Evid.Code, § 351), and the trier of fact may consider any admitted evidence.   Here, the admission of evidence of defendant's cultural background was never objected to by the People;  there is no argument that the evidence was relevant.   The question then is, on what issues was such evidence relevant?   As discussed below, this evidence clearly related to certain mental states, which are elements of the charged offense.

First, the evidence of defendant's cultural background was clearly relevant on the issue of premeditation and deliberation.   The prosecution's theory was that defendant's statements on days before the killing to Wu and other family members indicated that she had planned to take revenge on Wu by killing Sidney in a Medea-like gesture.   The evidence of defendant's cultural background offered an alternative explanation for the statements (that defendant intended to kill herself) and also for motive behind the killing, that explanation being that the killing of Sidney (as opposed to defendant's own planned suicide) was not deliberate and premeditated, but instead occurred immediately after defendant learned from Sidney himself facts conclusively confirming, in defendant's mind, the statements by Gramma and Sandy, and her own observations, that Sidney was not loved by Wu and was badly treated.

Second, the evidence of defendant's cultural background was also relevant on the issue of malice aforethought and the existence of heat of passion at the time of the killing, which eliminates malice and reduces an intentional killing to voluntary manslaughter.  (Pen.Code, § 192.)   The court recognized that “heat of passion” was an issue in this case because it instructed the jury regarding heat of passion negating malice and further instructed the jury regarding the lesser included offense of manslaughter.

“Normally, 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․’ ”  (People v. Wickersham, supra, 32 Cal.3d 307, 325, 185 Cal.Rptr. 436, 650 P.2d 311, quoting People v. Sedeno (1974) 10 Cal.3d 703, 719, 112 Cal.Rptr. 1, 518 P.2d 913.)   “ ‘ “[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, and that, consequently, no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man․  For the fundamental of the inquiry is whether or not the defendant's reason was, at the time of his act, so disturbed or obscured by some passion—not necessarily fear and never, of course, the passion for revenge—to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ ”  (People v. Wickersham, supra, 32 Cal.3d at p. 326, 185 Cal.Rptr. 436, 650 P.2d 311, quoting People v. Berry (1976) 18 Cal.3d 509, 515, 134 Cal.Rptr. 415, 556 P.2d 777, quoting, in turn, People v. Valentine (1946) 28 Cal.2d 121, 139, 169 P.2d 1.)

“To satisfy the objective or ‘reasonable person’ element of this form of voluntary manslaughter, the accused's heat of passion must be due to ‘sufficient provocation.’  (Sedeno, supra, 10 Cal.3d at p. 719 [112 Cal.Rptr. 1, 518 P.2d 913].)   However, as this court stated in Berry, ‘there is no specific type of provocation required by [Penal Code] section 192 [defining manslaughter] and ․ verbal provocation may be sufficient.’  (18 Cal.3d at p. 515 [134 Cal.Rptr. 415, 556 P.2d 777].)

“The subjective element requires that the actor be under the actual influence of a strong passion at the time of the homicide.  ‘In People v. Borchers (1958) 50 Cal.2d 321, 329 [325 P.2d 97] ․ in the course of explaining the phrase “heat of passion” used in the statute defining manslaughter[,] we pointed out that “passion” need not mean “rage” or “anger” but may be any “[v]iolent, intense, high-wrought or enthusiastic emotion” and concluded there “that defendant was aroused to a heat of ‘passion’ by a series of events over a considerable period of time․”  (50 Cal.2d at p. 328, 329 [325 P.2d 97].)'  (Berry, supra, 18 Cal.3d at p. 515 [134 Cal.Rptr. 415, 556 P.2d 777].)4  However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter—‘the assailant must act under the smart of that sudden quarrel or heat of passion.’  (CALJIC No. 8.42 (1979 rev.).)”  (People v. Wickersham, supra, 32 Cal.3d at pp. 326–327, 185 Cal.Rptr. 436, 650 P.2d 311.)

Here, there was evidence that defendant had experienced a series of events for a 10–year period before and during her stay in late August and early September 1989 with Wu in California, from which the jury could have concluded that defendant was suffering from “pre-existing stress” at the time that Sidney told her things which confirmed her fear that Sidney, because he was not legitimate and because he had no mother to care for him, was not well-treated, and that things were going to get worse for him upon the death of his Gramma.   The testimony related to defendant's cultural background was relevant to explain the source of such stress, as well to explain how Sidney's statements could have constituted “sufficient provocation” to cause defendant to kill Sidney in a “heat of passion.”

The experts on transcultural psychology specifically testified that, in their opinion, defendant was acting while in an emotional crisis 5 during the time that she obtained the knife and cord, strangled Sidney and then slashed her own wrist, and that her emotional state was intertwined with, and explainable by reference to, her cultural background.   Specifically, the following testimony was given:

Dr. Chien testified:

“A So when all of this thought came up to her mind, all of a sudden she said she couldn't breathe.   She almost got into some kind of state that she did not know what she was doing other than thinking that, ‘There's no way out other than bringing the son together with her to the other life.’ ”

After then describing the Chinese belief in an afterlife, he testified that:

“A She told me wondering that is a heaven, paradise.   She thought the only way to find out a way out is to bring this Sidney to go together so the mother and son can finally live together in the other heaven, other world if that cannot be done in this realistic earth.”

Dr. Chien further testified:  “And at that time, she said during the strangulation or that kind of emotional heat—obviously, she was under the heat of passion when she realized that her son was unwanted son, uncared by Gary, passed around from one woman to the other woman, and now the grandmother is dying and she was planning to leave, ‘What will happen to Sidney?’

“And all this information came up to her mind to stimulate all her guilt feeling which was probably more than ordinary guilt feeling that some depressive person would feel.

“I must say that guilt feeling is quite a common symptom in depressive patient, and for that many depressed person would commit suicide.

“But in this case, Helen had some realistic reason to be 200 percent or 300 percent more guilty in addition to her normal guilt feeling that came from depression.   She would feel that she couldn't really do the duty to the son, so the only way to fulfill her duty when she realized her son was neglected and not to be cared by anybody in the future, she thought the way to go is to the heaven.

“So obviously, obviously she strangulated her son and she kind of start being after to breathe again after the strangulation and realize how quickly a boy who is not a small boy could be killed by her small stature.”

Dr. Chien was asked about the significance of the “depression in [defendant's] thought processes” on her decision to strangle Sidney and he testified:

“A It was very—in my expertise as a transcultural psychiatry, in my familiarity, with my familiarity with the Chinese culture translate and from the information interview I obtain from Helen, she thought she was doing that out from the mother's love, mother's responsibility to bring a child together with her when she realized that there was no hope for her or a way for her to survive in this country or in this earth.

“Q Well, are you telling us that the death of Sidney was her act of love?

“A Yes.   It's a mother's altruism.   This may be very difficult for the Westerner to understand because I have dealt with many other so-called children who are sent to me from the children bureau.   Children can be easily taken away from the mother in our agencies' mind.   Social worker, when they discovered child abuse case or whatever case, children can be easily taken away from the parents.

“But in the Asian culture when the mother commits suicide and leave the children alone, usually they'll be considered to be a totally irresponsible behavior, and the mother will usually worry what would happen if she died, ‘Who is going to take care of the children?   Anybody [sic—nobody?] can supply the real love that mother could provide,’ so and so.

“․

“Q Well, based upon what you heard from Helen and reviewed from the materials, was Helen in a fugue state when she strangled Sidney?

“A Obviously.

“Q Why is it obvious?

“A Because that kind of emotion, mixed emotional of the despair, anger, disappointment, depression, sadness, hopelessness, everything all sudden come up to her mind that she thought the only way out is to go to the heaven together with the son.   And that is not kind of comfortable thing for people to think long time ahead or to plan.

“So obviously, she was under a kind of heat of emotion or I call it heat of passion that went out like a dreamy state.”

Dr. Terry Gock, a clinical psychologist who interviewed defendant for a total of nine and a half hours in three interview sessions and a witness for the defense, testified on direct examination that on the day Sidney was killed, defendant was experiencing a very high level of emotional turmoil, i.e., an emotional crisis, which he described as “when our, when our feelings are so conflicting, so confused and so, so distressful that we, that we don't perhaps know exactly how to plan a course of action, plan a solution in the most rational way.”   He testified that in his opinion, defendant's cultural background was very intertwined with her emotional state on the evening of the killing.   Specifically, Dr. Gock testified:

“Is very difficult to divorce ourselves from our culture and act in a totally culturally different way.   And so, you know, she in many ways is a product of her past experiences, including her culture.   And also when she experience certain things, like some of the information that she, that she got from her son that evening, it was, it was very distressful for her.   And in some sense the kind of alternatives that she, if you would perhaps, you know, it's not as rational as an alternative that the only way she saw out was perhaps—you know, maybe that's the best word is the way she saw how to get out of that situation was quite culturally determined.

“․

“A I was, I was thinking—I was, I was trying to explain is that her, she believe at that time that she had been lied to by, by, by Gary.   But more importantly that she believed that that evening what she found out was that Gary was not taking care of Sidney as a father would be expected to do, did not provide the paternal love that was, that she all along thought Sidney was receiving.   And that was very distressful for her.

“And then in terms of what are some of the alternatives then for her.   In—perhaps in this country, even with a traditional woman may, may see other options.   But in her culture, in her own mind, there are no other options but to, for her at that time, but to kill herself and take the son along with her so that they could sort of step over to the next world where she could devote herself, all of herself to the caring of the son, caring of Sidney.

“Q Was that the motive for killing him?

“A Motive, if you will, yes.

“Q What was her purpose?

“A Her purpose is to, is that she, is, in many ways is, is a benevolent one.   It's a positive one where she believed—and this, this sounds sort of implausible to some, some of us whose, who are raised in another culture.   That what she believed was that she was not exactly killing but, through death, both of them would be reunited in the next world where she could provide the kind of caring that Sidney did not get in this world.”

On cross-examination, Dr. Gock agreed that defendant must have made a decision to kill Sidney, and then decided what instrumentality to use, where to get it, and when to use it, but noted that the way the questions were being presented by the prosecuting attorney suggested “a lot of thought processes,” “[a]nd what I'm saying is that when one is emotionally distressed or one's feelings are all worked up, a lot of times we don't think in that kind of ways and we do things at, that afterwards we may be able to sort it out in that kind of a way, but at that time they were not separate elements like that.”

There was also testimony from Professor Juris G. Draguns, a clinical psychologist and an expert in the area of cross-cultural psychology.   He discussed, among other things, a “classical sociological study of suicide” which contained information about suicide and filicide, noting that the author:  “[D]escribed the situation of these combined, of killing oneself and one's child as follows.   She's talking then about American mothers for the most part in Chicago in the 1920's.   These mothers apparently did not yet regard their infant children as separate personalities with an independent right to live but, rather, as part of themselves, sharing their troubles, and to be taken on with them into death.

“Except in extreme ends to which it leads, this attitude of interpreting the interests and attitudes of another, in terms of one's own interest, is not abnormal nor even unusual.   In cases in which this attitude leads to murder before a suicide, the person committing the murder does not regard himself as doing anything criminal or even wrong.   He is moved by love, pity, sympathy.   He is removing someone from the wicked world before the wickedness has touched him.   He's doing kindness by removing the other from suffering, which he has endured and which, therefore, the other also endures or will in time encounter.   End of quote.

“And this, I believe, very much fits the mental state in the psychological situation of Mrs. Wu at the time when she took Sidney's life and attempted to take her own.”

 Because the requested instruction was, for the most part, a correct statement of the law,6 and because it was applicable to the evidence and one of defendant's two basic defenses in this case, upon retrial defendant is entitled to have the jury instructed that it may consider evidence of defendant's cultural background in determining the existence or nonexistence of the relevant mental states.

Because we have already decided that the judgment must be reversed because of the court's failure to give an instruction on unconsciousness, and because we only considered defendant's assertion that it was error not to give the cultural background instruction for purposes of guiding the trial court on retrial, we need not consider whether defendant was prejudiced by the failure to give the cultural background instruction.

IV

DISPOSITION

The judgment is reversed.

FOOTNOTES

1.   The People rely on certain testimony as justifying the trial court's refusal to give the instruction but they do not quote that testimony.   They simply give a string of record cites to it.   Subject to the appropriate standards of review, we have attempted to quote or summarize such testimony.

2.   “[I]t is error for a court not to give an instruction if that instruction is both correct in law and applicable on the record;  it is not error if either condition is lacking.”  (People v. Benson (1990) 52 Cal.3d 754, 807, 276 Cal.Rptr. 827, 802 P.2d 330.)   A corollary rule to this principle is that although a defendant is entitled to an instruction that “ ‘pinpoint[s] the theory of the defense,’ ” (People v. Wright (1988) 45 Cal.3d 1126, 1137, 248 Cal.Rptr. 600, 755 P.2d 1049), she is not entitled to an instruction which “ ‘ “direct[s] the attention of the jury to specific testimony and tell[s] the jury it may look to that testimony for the purpose of forming a reasonable doubt on any issue.” ’ ”  (Id. at p. 1137, 248 Cal.Rptr. 600, 755 P.2d 1049, emphasis added, quoting People v. Castellano (1978) 79 Cal.App.3d 844, 858, 145 Cal.Rptr. 264.)

3.   Here, unlike the situation in Sears, the requested instruction did not tie the evidence to a particular mental state, such as deliberation and premeditation, but instead tied the evidence to “the essential mental states of the crimes defined in these instructions” and to “any other issue in this case.”

4.   The effect of “a series of events over a period of time” may be that the defendant, just before the provoking incident, is under “pre-existing stress.”  (People v. Pacheco (1981) 116 Cal.App.3d 617, 627, 172 Cal.Rptr. 269.)In Pacheco, defendant had begun living with the victim's wife about two years after the victim and his wife had separated.   The victim called his wife and asked if she would agree to a divorce, and asked if he could come over and give his daughter a check for her birthday.   The wife agreed, and told defendant, who said he did not want to be there with the victim, and would leave and return later.   According to defendant, he later returned, and the victim, who had been drinking, began to pressure him to marry the victim's wife.   The victim refused to leave, and defendant told him he was not going to marry the wife because he “wasn't a sucker.”   This enraged the victim, who grabbed a knife, which in turn caused the defendant, allegedly out of fear, to stab him repeatedly.Defendant was convicted of first degree murder, and contended on appeal that the evidence showed substantial provocation “as a matter of law,” based on his view of the facts as showing a “simple and unexpected encounter of his wife's [sic] lover in his home.”  (116 Cal.App.3d 617, 627, 172 Cal.Rptr. 269.)   The appellate court did not agree, pointing out that the facts of the case upon which defendant relied for this proposition, People v. Bridgehouse (1956) 47 Cal.2d 406, 303 P.2d 1018, were quite different:  “the defendant in Bridgehouse did more than merely have contact with a passive victim;  he had no recollection of the shooting and was white and shaking before the killing;  he had been under a great strain due to his wife's extended affair with the victim.   Thus, Bridgehouse's encounter in his mother-in-law's house was a great shock to him.”  (116 Cal.App.3d at p. 627, 172 Cal.Rptr. 269.)   The court then noted that the existence of such “pre-existing stress” is a “crucial factor,” (ibid.) apparently in determining what is adequate provocation.

5.   One of the experts in describing this emotional and mental state used the phrase a “heat of passion” but not necessarily within the meaning of the same phrase as stated in Penal Code section 192, subdivision (a).

6.   The jury should not be instructed that the evidence of defendant's cultural background may be considered in connection with “any issue” in the case as stated in the last portion of the subject instruction;  evidence may only be considered if it is relevant, and the evidence of defendant's cultural background was not necessarily relevant to “any issue” in the case.   However, upon retrial, the trial court should correct such defects and give the requested instruction as so corrected.   (People v. Sears, supra, 2 Cal.3d at p. 190, 84 Cal.Rptr. 711, 465 P.2d 847.)

TIMLIN, Acting Presiding Justice.

McKINSTER and McDANIEL,* JJ., concur.

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