People v. Castillo CA2/1 ( 2021 )

Filed 3/23/21 P. v. Castillo CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B304080
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA087019)
v.
GONZALO JAVIER CASTILLO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Daniel B. Feldstern, Judge. Affirmed.
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael C. Keller and Wyatt E. Bloomfield,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Gonzalo Javier Castillo (defendant) appeals from the
judgment following his conviction for first degree murder.
Defendant contends there was insufficient evidence of
premeditation and deliberation to support his conviction. He
further contends the trial court erred by not instructing the jury
on imperfect self-defense. We conclude there was sufficient
evidence to support the conviction, and any failure to instruct on
imperfect self-defense was harmless. Accordingly, we affirm.
FACTUAL BACKGROUND
1. Prosecution case
On August 17, 2016, around 2:40 p.m., Estela Alvarez saw
a shadow pass by the window as she sat in her living room.
Looking out the window, she saw a man jump over her fence and
go down the driveway of the property across the street. The man
was moving quickly.
Alvarez went to the bedroom where her husband,
Salvador Martinez, was and told him what she had seen. Two or
three minutes later, Martinez went over to the property across
the street to see what was happening.
The property across the street had two dwellings on it, a
house in front and a converted garage in back. Martinez knew
the man who lived in the garage, Michael Millington, age 69.
Martinez checked the front house first before moving towards the
converted garage.
As Martinez got close to the garage, he heard Millington
saying, “ ‘Why are you doing this to me? Why are you doing this
to me?’ ” Martinez yelled that the police were coming, and called
911. The time stamp on the 911 call was 2:44 p.m. During the
call, Martinez reported he could hear “screaming” and “[s]omeone
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is attacking someone in the garage.” Shortly thereafter he
reported that “[t]he screams have quieted down now.”
When the police arrived, they found Millington lying face
up on the floor, motionless and not breathing. On the bed was a
wok-like pan with one of the sides deformed. There were no signs
of forced entry. Millington was wearing pajama pants and a dark
colored shirt, and had ear plugs in both ears, one of which had
dried blood stains on it.
The police set up a perimeter. A resident of a nearby house
discovered defendant hiding on her property and informed the
police, who arrested him. Defendant was not wearing a shirt
when the police found him.
In addition to the wok-like pan found on the bed in
Millington’s home, detectives found a frying pan containing what
appeared to be liquid bleach sitting on a stove burner. The
burner was on and the liquid was bubbling. Detectives also
found a pair of sunglasses on the floor, and an empty magazine
from an Airsoft pellet gun.
The police found a pillowcase matching the sheets on
Millington’s bed near some trash cans next to the property where
defendant was arrested. In the pillowcase was an Airsoft pellet
pistol, a pill bottle, two cell phones, one of which was shattered,
and a torn t-shirt. The pistol was like a BB gun, capable of
causing injury if loaded. The empty magazine found in
Millington’s house fit the Airsoft pistol. Also found near the
trash cans was a bottle of Clorox bleach-type house cleaner.
The police determined that the shattered cell phone
belonged to defendant, and the other phone belonged to
Millington. Both Millington’s and defendant’s blood was found on
the wok-like pan, the torn t-shirt, and the undamaged cell phone.
3
Millington’s autopsy indicated he died from traumatic
asphyxiation due to blunt force injuries of the neck. Specifically,
his Adam’s apple was fractured and transected from his
windpipe, which prevented him from breathing. Such an injury
would require significant force to achieve; the evidence showed
Millington had sustained multiple blows to the neck. Although
the forensic pathologist could not say definitively the wok-like
pan caused the injuries, his measurements were consistent with
that theory.
Millington also had suffered what appeared to be a single
forceful blow to the chest that fractured his breastbone, ribs, and
vertebrae. He had multiple contusions and a laceration on his
face. He had contusions and abrasions on his hands, arms, legs,
and feet. Some of the hand injuries could be offensive wounds,
perhaps from Millington punching someone, and some could be
defensive. The injuries on the arms and legs suggested defensive
wounds.
2. Defense case
At around 2:30 or 2:40 p.m. the day of the homicide,
Matthew Picado was pulling his car out of his driveway in the
neighborhood where the homicide took place. He saw a man with
a ripped shirt run into the driveway and disappear into Picado’s
backyard. He looked frantic and in a hurry.
Gabriel Rebolledo was the police officer who transported
defendant to the police station after his arrest. Defendant was
sweating and began banging his head on the open partition
dividing the front and rear seats of the police car. Rebolledo told
defendant he did not want defendant to hurt himself. Defendant
said, “ ‘I don’t have anything against you guys, just the guy who
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fucked my wife.’ ” Then he said, “ ‘You guys should have just
killed me.’ ”
A number of relatives and acquaintances of defendant
testified to his good character. They also testified that in the
months leading up to the homicide his behavior changed. For
example, the tire shop he owned became disorganized, he
believed he was being watched or followed, and he believed
people were coming into his apartment and planting things in his
truck. His cousin testified defendant was using crystal
methamphetamine. The cousin also testified that after defendant
was arrested, his girlfriend, Maria Melgar, told the cousin that a
month earlier defendant had told Melgar he believed she was
cheating on him.
a. Maria Melgar
Melgar testified she had been defendant’s girlfriend for the
five years prior to the homicide.1 She claimed he was never
violent, never yelled at her, and never acted jealous or accused
her of having an affair.
About a year before the homicide Melgar noticed changes in
defendant’s behavior. He hardly ate or slept. He would ask her if
she heard things, and he disassembled lamps and a DVD player.
When they went out, he would say they were being followed. His
shop became disorganized. He thought someone had planted
something in his truck and went to the police about it. At one
point some months before the homicide, he left her a note saying
someone was spying on him, possibly the police, and he had found
1Although Melgar and defendant were not legally
married, he sometimes referred to her as his wife.
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two hidden cameras and believed there were more. She was very
worried, and thought he had a psychological problem.
A month before the homicide, Melgar found a bag of white
powder in defendant’s pants. When she asked defendant about
it, he said it was drugs.
In August 2016, the month of the homicide, defendant
began sleeping at his tire shop, and was distant with Melgar. He
slept at the shop the night before the homicide. Melgar went to
see him the morning before the homicide and asked him to come
home and stop using drugs.
Melgar had an application on her phone that allowed her
and defendant to exchange text messages that also notified the
recipient of the location of the sender. She did not check her
phone until around 5 or 6 p.m. the day of the homicide.
Defendant had sent her one message at 2:38 p.m., one at
2:41 p.m., and one at 4:10 p.m. The 2:38 p.m. message included a
recording of what sounded like a struggle and a man screaming,
“What the fuck are you doing? What the fuck.” The 4:10 p.m.
message stated, “I need help.” The location information from the
2:38 p.m. and 4:10 p.m. messages was in the area of the homicide.
Melgar testified she never had an affair outside her
relationship with defendant and did not know Millington. She
denied telling defendant’s cousin that defendant had accused her
of being unfaithful.
b. Defendant’s testimony
Defendant testified on his own behalf. He admitted he was
responsible for Millington’s death, but claimed he did not
remember attacking him.
Defendant testified he began using methamphetamine in
October 2015. Two or three months before the homicide, he
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began thinking he was being followed, and would hear voices
from the radio or television telling him to move or find things.
He thought people were coming into his apartment when he
wasn’t there or were watching him and had planted drugs in his
truck to incriminate him.
Defendant started sleeping in his tire shop in August 2016
to hide his drug use from Melgar. In the days just before the
homicide, he believed people were going to come to his shop to
hurt him. He made a hole in the ceiling of his shop’s restroom as
an escape route.
The day of the homicide, he left his shop through the ceiling
hole, fearful people were coming for him. He testified he had no
plan, he just wanted to escape. He remembered running and
jumping fences, but did not remember going to Millington’s
house, beating him with a frying pan, or heating Clorox on the
stove. He did not remember sending messages to Melgar. He did
remember being arrested, but he did not remember making any
statements on the way to the police station or being interviewed
by the police. Defendant claimed he never thought Melgar was
cheating on him and never accused her of it.
c. Defendant’s police interview
During defendant’s cross-examination, the prosecution
played a video of defendant’s interview with the police the day of
his arrest.2 During the interview, defendant told police that
2 The prosecution did not play the interview video or
introduce any statements from defendant during the
prosecution’s case-in-chief.
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Millington was cheating with his “wife,” referring to Melgar.3
Defendant claimed that a few weeks earlier he had seen a picture
from Millington on his wife’s phone, as well as text messages
exchanged between Melgar and Millington.
Defendant said he went inside Millington’s home and saw
Millington was sleeping. Defendant had his pellet gun with him
to scare Millington. Millington said, “ ‘What the fuck, what,’ ”
and defendant accused him of cheating with his wife. Defendant
and Millington then struggled with one another. Defendant “hit
him” and “kill[ed] him.” Defendant claimed he broke Millington’s
neck, and hit him “[t]oo many times.” The fight lasted less than
10 minutes.
Defendant had gone to Millington’s house intending only to
hit Millington, but then “I kill him, actually because I don’t want
him follow me or-or-or-or him don’t get anything, I had to fight—
if you know some—you hit somebody or you do something, but
these people will, will follow you.” Defendant put Clorox in a
frying pan to try to burn the house down so he could get away.
Defendant stated that during the fight with Millington he
threw his pellet gun under the bed and thought his “wife’s
sunglasses” were under the bed too. He tried to use his phone to
“get the proof or something like that” and also took Millington’s
phone to get “proof to show my wife” “what’s going on.”
Asked if he had seen Millington before, defendant said
Millington had passed by his tire shop on a prior day, and
defendant had followed him and seen where he lived. That is
3 Defendant did not identify Millington by name during
the interview, instead calling him a “guy” or “old man.” At one
point he said he was looking for “Henry” or “Eddie,” although it
was not clear he was referring to Millington.
8
how he knew how to find Millington’s house. Defendant said he
had used methamphetamine about half an hour before going to
Millington’s house.
Defendant had some injuries on his body, but claimed he
had gotten them in his shop beforehand or while running away.
d. Dr. Andrea Bernhard
The defense called Dr. Andrea Bernhard, a psychologist.
She opined that on the day of the homicide, defendant was
suffering from drug-induced psychosis, and the delusions guided
his behavior. She believed defendant ran from his shop under a
delusion that someone was going to hurt him, with no specific
idea where he was going, and entered Millington’s home seeking
refuge. Millington, upset about the intrusion, fought with
defendant.
Bernhard further opined that at some point during the
fight, defendant saw the sunglasses on the floor, and developed a
new delusion that they belonged to Melgar, and that Millington
and Melgar were having an affair. Bernhard characterized the
offense as have “two portions,” the first being defendant running
for his life from his shop, entering Millington’s home and
grabbing the wok-like pan, and the second being the “triggering
of the jealous delusions by the sunglasses.”
Bernhard testified that defendant’s claimed memory loss
was consistent with his drug use.
3. Prosecution’s rebuttal
The prosecution called Dr. Kris Mohandie, a clinical, police,
and forensic psychologist. Mohandie opined that blackouts and
amnesia are not common side effects of methamphetamine use,
although delusions and paranoia are. Mohandie thought it was
9
inconsistent with the way memory works for defendant to have
recalled the details of the homicide during his police interview
but to have completely forgotten them months later. Mohandie
diagnosed defendant with methamphetamine-induced psychosis,
a variety of substance abuse disorders, and malingering
regarding his claim of blackouts. He believed defendant at the
time of the homicide was “goal-directed, purposeful, [and]
evidenced continuity of purpose and a criminal presence of mind.”
PROCEDURAL BACKGROUND
An information charged defendant with murder
(Pen. Code,4 § 187, subd. (a)), and alleged that in the commission
of that offense he personally used a deadly and dangerous
weapon, a frying pan (§ 12022, subd. (b)(1)).
Following the prosecution’s case-in-chief, defendant argued
there was insufficient evidence to support first degree murder
based on premeditation and deliberation and moved under
section 1118.1 to dismiss any such allegations. The trial court
denied the motion.
The jury found defendant guilty of willful, deliberate, and
premeditated first degree murder, and found true the weapon
allegation. The trial court sentenced defendant to 26 years to life
and awarded credits and imposed fines and fees.
4 Unspecified statutory citations are to the Penal Code.
10
DISCUSSION
A. The Evidence Presented During the Prosecution’s
Case-In-Chief Was Sufficient for the Trial Court to
Deny the Motion Under Section 1118.1
Defendant argues the prosecution in its case-in-chief
presented insufficient evidence of premeditation and deliberation
to support a conviction for first degree murder, and therefore the
trial court erred in not granting defendant’s motion under
section 1118.1 to dismiss those allegations. Defendant contends
his conviction must be reduced to second degree murder.
We disagree.
1. Standard of review
“In ruling on a motion for judgment of acquittal pursuant to
section 1118.1, a trial court applies the same standard an
appellate court applies in reviewing the sufficiency of the
evidence to support a conviction. . . .” (People v. Cole (2004)
33 Cal. 4th 1158, 1212–1213 (Cole).) “ ‘When the sufficiency of the
evidence to support a conviction is challenged on appeal, we
review the entire record in the light most favorable to the
judgment to determine whether it contains evidence that is
reasonable, credible, and of solid value from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] Our review must ‘ “presume in support of the
judgment the existence of every fact the jury could reasonably
have deduced from the evidence.” ’ [Citation.] Even where . . .
the evidence of guilt is largely circumstantial, our task is not to
resolve credibility issues or evidentiary conflicts, nor is it to
inquire whether the evidence might ‘ “ ‘be reasonably reconciled
with the defendant’s innocence.’ ” ’ [Citations.] The relevant
11
inquiry is whether, in light of all the evidence, a reasonable trier
of fact could have found the defendant guilty beyond a reasonable
doubt.” (People v. Gomez (2018) 6 Cal. 5th 243, 278 (Gomez).)
“ ‘Where the section 1118.1 motion is made at the close of
the prosecution’s case-in-chief, the sufficiency of the evidence is
tested as it stood at that point.’ ” (Cole, supra, 33 Cal.4th at
p. 1213.)
2. Applicable law
Murder that is “willful, deliberate, and premeditated” is
first degree murder. (§ 189, subd. (a).) “ ‘ “In this context,
‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’
means ‘formed or arrived at or determined upon as a result of
careful thought and weighing of considerations for and
against the proposed course of action.’ ” ’ [Citation.] ‘ “An
intentional killing is premeditated and deliberate if it occurred as
the result of preexisting thought and reflection rather than
unconsidered or rash impulse.” ’ [Citations.] ‘The true test is not
the duration of time as much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly . . . .’ ”
(People v. Potts (2019) 6 Cal. 5th 1012, 1027.)
Our Supreme Court has identified “ ‘three basic categories’
of evidence” the high court “has generally found sufficient to
sustain a finding of premeditation and deliberation: (1) planning
activity, or ‘facts about how and what defendant did prior to the
actual killing which show that the defendant was engaged in
activity directed toward, and explicable as intended to result in,
the killing’; (2) motive, or ‘facts about the defendant’s prior
relationship and/or conduct with the victim from which the jury
could reasonably infer a “motive” to kill the victim’; and
12
(3) manner of killing, or ‘facts about the nature of the killing
from which the jury could infer that the manner of killing was
so particular and exacting that the defendant must have
intentionally killed according to a “preconceived design” to take
his victim’s life in a particular way for a “reason” . . . . ’
[Citation.]” (People v. Morales (2020) 10 Cal. 5th 76, 88–89
(Morales), quoting People v. Anderson (1968) 70 Cal. 2d 15, 26–27
(Anderson).)
These three categories of evidence “ ‘ “are descriptive and
neither normative nor exhaustive,” ’ ” and “ ‘ “reviewing courts
need not accord them any particular weight.” ’ [Citation.]
Anderson provides ‘a framework to aid in appellate review,’ but it
does not ‘define the elements of first degree murder or alter the
substantive law of murder in any way.’ ”5 (Morales, supra,
10 Cal.5th at p. 89.)
5 Anderson, analyzing past cases, concluded that the
Supreme Court “sustains verdicts of first degree murder typically
when there is evidence of all three types [i.e., planning, motive,
and manner of killing] and otherwise requires at least extremely
strong evidence of [planning] or evidence of [motive] in
conjunction with either [planning] or [manner of killing].”
(Anderson, supra, 70 Cal.2d at p. 27.) As noted in Morales, the
high court’s more recent jurisprudence makes clear there is no
requirement that certain of these factors be present or weighted
in a particular way. For example, the Supreme Court has upheld
first degree murder convictions based solely on “manner of
killing” evidence. (See, e.g., People v. Hawkins (1995) 10 Cal. 4th
920, 957 [evidence of execution-style murder sufficient to support
finding of premeditation and deliberation, even when “evidence of
planning and motive was indeed minimal if not totally absent”],
abrogated on other grounds by People v. Lasko (2000) 23 Cal. 4th
101.)
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3. Analysis
Analyzing the Anderson factors, defendant argues the only
evidence that could possibly suggest planning was testimony that
defendant appeared to take a direct route towards Millington’s
home. This, defendant contends, does not demonstrate an
advance plan to kill Millington, particularly given that defendant
was carrying only a nonlethal pellet gun. In the end, he used a
“weapon of convenience he found at the scene,” the wok-like pan.
As for motive, defendant argues that the prosecution failed
to introduce any evidence of motive in its case-in-chief—it was
not until the defense presented its case that the jury heard of
defendant’s drug use and delusions that Millington was having
an affair with Melgar.
As for the manner of killing, defendant argues the brutal
attack appeared to have occurred in a frenzy with an object
defendant found at the scene, which does not suggest he had a
preconceived design to kill Millington in a particular way.
We acknowledge that the evidence in the prosecution’s
case-in-chief of premeditation and deliberation was not extensive,
particularly given the lack of evidence of motive. We nonetheless
conclude, “ ‘ “presum[ing] . . . every fact the jury could reasonably
have deduced from the evidence,” ’ ” that “a reasonable trier of
fact could have found the defendant guilty beyond a reasonable
doubt” of deliberate and premeditated murder. (Gomez, supra,
6 Cal.5th at p. 278.)
In particular, there was evidence from which the jury could
infer that defendant already had an intent to kill when he
arrived at Millington’s home. Significant to us is not only
Alvarez’s testimony suggesting that defendant was moving
swiftly, directly, and, a jury could infer, purposefully towards
14
Millington’s home, but also how quickly after defendant arrived
that he attacked and killed Millington. According to Martinez, he
walked across the street to see what was happening within two or
three minutes after Alvarez saw defendant pass through their
yard and go down Millington’s driveway. He checked the front
house first, then moved towards Millington’s home, at which
point he heard Millington yelling, “Why are you doing this to
me?” According to Martinez’s call to 911, Millington’s screaming
stopped soon after—the jury reasonably could infer this was
because Millington was dead or close to it. Under this timeline,
therefore, it would appear that only a few minutes passed
between defendant’s arrival at Millington’s home and defendant
attacking and killing Millington.
This short timeframe means that, if defendant did not
intend to kill Millington when he first arrived, he quickly
developed an intent to kill within minutes of his arrival, an
intent so strong that it led to a brutal beating with blows forceful
enough to break multiple bones and destroy Millington’s
windpipe. That defendant would so quickly and dramatically
switch mental states seems unlikely given that Millington was in
his pajamas and wearing earplugs, from which the jury could
infer Millington did not converse with or conduct some sort of
business with defendant, at least not to any significant extent.
Millington’s plea of “Why are you doing this to me?” further
suggests Millington was bewildered by the sudden attack, which
in turn suggests Millington did not provoke it in some way.
In short, a jury reasonably could conclude that, given the
short period between defendant’s arrival and his severe attack on
Millington, with evidence suggesting Millington did not provoke
the attack, it was implausible beyond a reasonable doubt that
15
defendant developed an intent to kill after his arrival. Although
this reasoning may not fit cleanly into the framework of the
Anderson factors, those factors, again, “ ‘ “are descriptive and
neither normative nor exhaustive,” ’ ” and we “ ‘ “need not accord
them any particular weight.” ’ ” (Morales, supra, 10 Cal.5th at
p. 89.)
B. The Evidence Presented Was Sufficient to Support
the First Degree Murder Conviction
Defendant argues that the sum total of evidence presented
at trial was insufficient to support his first degree murder
conviction. Our conclusion that the evidence presented during
the prosecution’s case-in-chief alone was sufficient to support his
conviction defeats this argument.
We note, however, that the evidence became only stronger
once the prosecution presented defendant’s police interview when
cross-examining defendant. That interview provided evidence of
motive, namely defendant’s perception that Millington was
having an affair with Melgar. Defendant stated he had known of
the affair for weeks prior to the killing and knew where
Millington lived because he had followed him home one day. He
stated that he went to Millington’s home to confront him about
the purported affair. Although he claimed to have intended only
to hit or scare Millington, the jury was entitled to disbelieve that
portion of his statement. (See People v. Wader (1993) 5 Cal. 4th
610, 641 [jury “free to believe some of defendant’s statements and
to disbelieve other statements”].) Defendant’s statement
provided ample evidence from which the jury could infer that he
went to Millington’s home with the intent to kill him over what
he believed was Melgar’s affair with Millington.
16
Defendant argues this motive evidence was “contained in
[defendant’s] methamphetamine[-]fueled delusions,” and
therefore was not credible. The fact that the basis of defendant’s
murderous intent may have been delusional or inaccurate does
not change the fact that he had murderous intent. To the extent
defendant is arguing that none of his statements to the police
may be trusted given his delusional state, on appeal we do not
resolve credibility issues. (Gomez, supra, 6 Cal.5th at p. 278.)
The jurors were well aware of the evidence of defendant’s drug
use and could weigh for themselves how that information affected
his credibility.
C. Any Error in Not Instructing on Imperfect
Self-Defense Was Harmless
The trial court denied defense counsel’s request to instruct
the jury on imperfect self-defense. Defendant claims this was
error. We disagree.
“ ‘ “ ‘Under the doctrine of imperfect self-defense, when the
trier of fact finds that a defendant killed another person because
the defendant actually, but unreasonably, believed he was in
imminent danger of death or great bodily injury, the defendant is
deemed to have acted without malice and thus can be convicted of
no crime greater than voluntary manslaughter.’ ” ’ [Citation.]
Imperfect self-defense ‘obviates malice because that most
culpable of mental states “cannot coexist” with an actual belief
that the lethal act was necessary to avoid one’s own death or
serious injury at the victim’s hand.’ ” (People v. Beck and Cruz
(2019) 8 Cal. 5th 548, 648.) “This doctrine is a ‘ “narrow” ’ one and
‘will apply only when the defendant has an actual belief in the
need for self-defense and only when the defendant fears
17
immediate harm that “ ‘ “must be instantly dealt with.” ’ ” ’
[Citation.]” (People v. Landry (2016) 2 Cal. 5th 52, 97–98.)
“ ‘[I]mperfect self-defense is not an affirmative defense, but
a description of one type of voluntary manslaughter. Thus the
trial court must instruct on this doctrine . . . whenever there is
evidence substantial enough to merit consideration by the jury
that under this doctrine the defendant is guilty of voluntary
manslaughter.’ [Citation.]” (People v. Manriquez (2005)
37 Cal. 4th 547, 581 (Manriquez).)
Defendant argues there was sufficient evidence to support
the theory that, beset by methamphetamine-induced delusions,
he ran into Millington’s converted garage to escape from
imagined pursuers, unaware Millington was inside. Millington,
“alarmed that someone entered his simple abode, confronted
[defendant], resulting in offensive injuries to [Millington].”
Defendant then believed, albeit unreasonably, that he had to
defend himself from Millington’s unexpected attack.
We need not decide whether the trial court erred in not
providing an imperfect self-defense instruction, because any error
was harmless. Even without the instruction, had the jury
believed that defendant killed Millington in response to being
surprised while hiding from imagined pursuers, the jury would
not have found defendant guilty of deliberate and premeditated
first degree murder, but instead second degree murder. Having
not done so, the jury implicitly rejected the theory that defendant
killed Millington spontaneously out of fear, and therefore would
have reached the same result even with an imperfect self-defense
instruction. (See Manriquez, supra, 37 Cal.4th at p. 582 [jury’s
verdict of first degree murder “implicitly rejected defendant’s
version of the events, leaving no doubt the jury would have
18
returned the same verdict had it been instructed regarding
imperfect self-defense”]; People v. Lewis (2001) 25 Cal. 4th 610,
646 [“Error in failing to instruct the jury on a lesser included
offense is harmless when the jury necessarily decides the factual
questions posed by the omitted instructions adversely to
defendant under other properly given instructions.”].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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