Opinion
E064416
06-27-2017
THE PEOPLE, Plaintiff and Respondent, v. EDGAR SILVA, Defendant and Appellant.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1302573) OPINION APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed. Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Edgar Silva, beat his girlfriend to death in a "sadistic and savage" manner, as even he acknowledges on appeal. A jury convicted him of the first degree murder of Shirley Chanel Corrales and found the torture-murder special circumstance and deadly weapon allegations to be true. (Pen. Code, §§ 187, subd. (a), 189, 190.2, subd. (a)(18), 12022, subd. (b)(1).) The court sentenced him to life in prison without the possibility of parole plus three years for the deadly weapon enhancements and a prior prison term enhancement. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: (1) there was insufficient evidence of his intent to kill supporting the torture-murder special circumstance; (2) there was insufficient evidence of either (a) premeditation and deliberation or (b) acts involving a high probability of death, as required for murder by torture; and (3) the court prejudicially erred in misinstructing the jury on the mental state required for murder (malice aforethought). We affirm.
II. FACTS
Corrales began dating defendant in July 2012, when she was 19 years old. In June 2013, just after Corrales turned 20 years old, she moved into defendant's house in Temecula, California. She died on August 16, 2013.
Giselle B. and her three children were defendant's roommates. Giselle signed an immunity agreement in exchange for her truthful testimony at trial. She was using methamphetamine daily in August 2013, but was not using at the time of trial.
On August 15, 2013, Giselle, defendant, and Corrales stayed up all night. Defendant gave Giselle money to buy methamphetamine, and she used the drug that night. She did not see defendant and Corrales use methamphetamine, but defendant took a portion of the drug and "went off someplace."
Giselle's children woke at approximately 7:00 a.m. on August 16, 2013. She saw defendant and Corrales cleaning up the backyard around this time. Defendant's next-door neighbor also saw defendant and Corrales doing work in their backyard at around 7:00 or 8:00 a.m. Giselle and her children left the house sometime before 9:30 a.m. She saw defendant and Corrales in the master bedroom when she left, and "everything was normal." She did not hear any arguing before departing. She was away from the house for several hours running errands.
Elvira C.'s backyard bordered defendant's backyard. The sound of someone yelling woke her at around 7:30 or 8:00 a.m. on August 16. Specifically, she heard an angry male voice yelling, "'You F'ing cunt, I'm going to F'ing kill you. Why would you do that? You're F'ing dead. I'm going to F'ing kill you.'" She thought the yelling was directed at a woman because the male used the words "'bitch'" and "'cunt.'" Elvira's boyfriend also heard someone yelling, "'I'm going to kill you.'" The yelling continued for close to an hour. Yelling and screaming frequently came from defendant's house, and this yelling was also coming from there. Her sliding door was open, but she could still hear the yelling even after her boyfriend shut it. The yelling voice was familiar to her. She thought it was either defendant or "Danny," another man she knew from defendant's house, who was around the same age and sounded similar to defendant. She had face-to-face conversations with both men in the past. Defendant's next-door neighbor did not hear any screaming or noise coming from defendant's house between 7:00 a.m. and 3:00 p.m. that day, though he did not have any windows or doors open.
Defendant's friend Mathis R. sold drugs and supplied them to defendant. Mathis was clean and sober at the time of trial, but was using heroin, methamphetamine, and marijuana at the time of these events. He had a conviction for shoplifting. He signed an immunity agreement in exchange for his truthful testimony.
Defendant called Mathis sometime before 9:00 a.m. on August 16, 2013. Defendant said he was not feeling well and asked if Mathis had marijuana. Defendant was "coming down" from methamphetamine and had not slept for four days. Mathis agreed to bring marijuana over in a few hours. He arrived at defendant's house with three friends, including Shannon P. Mathis knocked loudly on defendant's front door, but no one answered. He hopped the fence to the backyard and went to the sliding glass door leading to the master bedroom. The door was cracked open approximately six inches, and Mathis could see defendant and Corrales on the bed. Mathis spoke through the door and told defendant to get up. Defendant asked him to go through another sliding glass door leading to the kitchen. Mathis found that door locked and went back to the master bedroom door, where he entered the house.
Corrales was lying on the bed on her stomach. She was wearing only boxer shorts and a tank top. At a glance, she appeared to be covered all over in hair dye, but Mathis soon realized she was covered in bruises. She was not moving. Mathis asked defendant what had happened, and defendant said, "'I messed up, I messed up,'" several times. Defendant said he had "hit her with some cords." Mathis saw "electrical cords from appliances or something" in the room. He put his ear close to Corrales's mouth and heard short, shallow breaths. He told defendant they could not leave Corrales like that and had to do something.
By this time, Giselle had returned to the house and entered the room through the bedroom door. She saw defendant and Corrales lying on the bed when she entered. Corrales was not moving on the bed but appeared to be breathing. Her legs appeared to have purple hair dye on them.
Mathis said he was going to "get rid of" the people in his car and then return to defendant's house. He drove two of his friends to a nearby location and returned to defendant's house with Shannon. In the meantime, Giselle had realized "something was wrong with" Corrales. She told defendant, "something's not right," and asked him to "do something." He was frantic and tried to do cardiopulmonary resuscitation on Corrales, and when that did not work, he moved her to a sitting position on the couch in the master bedroom. Water came out of her mouth when he moved her. He told Giselle to call 911.
When Mathis and Shannon returned, Giselle and her kids were getting into their car, and Giselle told them to call 911. Corrales was no longer breathing. Shannon called 911 from her telephone. Mathis went into the house with defendant, where Corrales was on the couch in the master bedroom. Mathis grabbed the telephone from Shannon and gave the dispatcher the address, and the dispatcher walked him through performing chest compressions on Corrales. He was still doing them three to four minutes later when the police arrived. Before the police arrived, Mathis told defendant to leave, and defendant fled out the door to the backyard.
The responding officer (with 13 years' experience) and paramedic (with 20 years' experience) had never seen bruising as extensive as Corrales's bruising. The paramedic pronounced Corrales dead at the scene.
Investigating officers from the Riverside County Sheriff's Department (one with 15 years' experience and the other with 13 years' experience) also noted they had never seen bruising as extensive as Corrales's injuries. Corrales had a vein in the bend of her right arm that appeared to be "blown out," or used extensively for drug use.
Some of the marks on Corrales's body looked as though they were the result of being struck by a cord. In the closet, an investigator found a piece of white plastic pipe with cables wrapped around it and secured with clear tape. Other loose cables were on the floor. The investigator found clear tape elsewhere in the room that appeared to match the tape on the cables. Another piece of white plastic pipe was under the bed, and a broken wooden handle of some sort was also in the room. It appeared to the investigator that Corrales's injuries might have been inflicted with these items—that is, by whipping her with the cables wrapped around the pipe, and by striking her with the other piece of pipe and wooden handle.
There were also three cellular telephones in the master bedroom, including a white iPhone belonging to Corrales. The white iPhone contained a video recorded on August 16, 2013 at approximately 11:00 a.m. It depicted defendant and Corrales. Corrales was crying and saying, "[N]o babe, baby, baby please, please." Defendant responded, "I got to," and "You gonna go? You gonna go? You know I'm going to babe." The video ended on Corrales saying, "No, no, please, you don't have to."
The deputy coroner who responded to the scene did not find any signs of a drug overdose or recent puncture marks of the type caused by a syringe. Corrales had bruising on her arms, hand, thighs, hips, shins, face, breast, chest, shoulders, abdomen, buttocks, and most of her back. She also had abrasions on her chin, temple, abdomen, breast, arms, and legs, and a bump on the back of her head. Some of the bruising looked like the markings of a cord. Corrales's bruising was not consistent with lividity, or the gravitational pooling of blood that occurs after death, when a person's heart stops pumping blood. In her eight-year career, the coroner had never seen bruising as extensive as Corrales's bruising.
On August 17, 2013, the police apprehended defendant after his next-door neighbor discovered him hiding in the neighbor's covered Jacuzzi, which had an inch or so of water in it. A detective with the Riverside County Sheriff's Department interviewed defendant. Defendant admitted he gave Corrales the bruises on her body by whipping her "with the string," or the "RCA" cord for the DVD player, and hitting her with the wooden stick. He used a "regular" cord, the pipe with the cord wrapped around it, and the wooden stick. He hit her multiple times with the stick, but could not recall exactly how many, and seven to eight times with the improvised whip. He "hit her hard" and "gave her an ass spanking." She tried to cover herself and curled up, and told him, "'Stop, it hurts.'" He was angry with Corrales because she broke his iPhone, he wanted her to delete some photographs from her telephone, and she "never backed him up or talked good about him." He was "full of rage" and could not stop himself from hitting her. All of this occurred in the master bedroom when no one was in the house.
Corrales's blood tested positive for methamphetamine, with a level of 95 nanograms per milliliter at the time of her death. That was nowhere near a lethal dose of methamphetamine. The average lethal dose or overdose level of methamphetamine in the blood is approximately 2,000 nanograms per milliliter. Corrales's blood also tested positive for marijuana. Defendant's blood tested positive for methamphetamine, at a level of 55 nanograms per milliliter, and marijuana.
The forensic pathologist who conducted Corrales's autopsy, Dr. Mark McCormick, observed bruises and abrasions all over Corrales's body. Like the other investigators or first responders in this case, the doctor had never seen such extensive bruising, after having conducted over 4,000 autopsies. Bruises, or contusions, involve the breaking of small vessels in the skin and underlying tissue, while abrasions are "scraping-type injuries to the surface of the skin." The doctor noted 15 bruises or abrasions on Corrales's head, neck, and face. She had hemorrhaging in the tissue between the scalp and skin and in the muscle that connects the head to the neck. The doctor noted at least 36 injuries on the torso (the chest, abdomen, and back). There were some areas of "discrete pattern injuries," which were parallel lines of bruising. The pattern was consistent with a flexible cylindrical object such as a cord. There were at least two dozen cord marks on her back. The cord-mark injuries also appeared on her legs. The cord marks, bruises, and abrasions "flow[ed] together" on some areas of her body. The bruises were caused by some sort of blunt impact, such as a punch, kick, or object striking the body. Corrales also suffered at least 60 separate injuries on her arms, hands, and legs, some of which were consistent with defensive wounds.
All told, Corrales suffered over 100 separate impacts or injuries. All of these injuries were inflicted before her death, probably within a few hours of death, and were inflicted at around the same time. Dr. McCormick made incisions in Corrales's skin to confirm there was actually bleeding in the tissues and thus bruising, not just lividity. Discoloration from lividity is limited to the skin. The doctor did not see any patterns in the skin consistent with lividity.
Dr. McCormick opined multiple blunt impact injuries caused Corrales's death. This was not a typical case in that he could not pinpoint the cause of death to a single gunshot or stab wound. But there were several mechanisms that could have contributed to Corrales's death. First, her soft tissue injuries could have caused the blood vessels to release blood and fluid into the soft tissue, and the decrease of blood in the vessels would have caused low blood pressure. The low blood pressure would cause brain injury and cause the heart to stop beating. This mechanism was akin to internal bleeding. Corrales had very little blood in the great vessels and chambers of her heart, consistent with the blood leaking out to the injured soft tissue of the body. She also had considerable hemorrhaging in some of her soft tissues, again consistent with this mechanism. Also, the absence of lividity in her body indicated very little blood remained in her blood vessels. This mechanism might take a few minutes to an hour or more to cause death.
Second, the blows to Corrales's head could have caused concussive head injury. Although she did not have any obvious injuries to the brain or bleeding in the skull, concussive injuries may occur without these indicators. Third, kidney failure could have played a role in her death. She had signs of myoglobin collecting in the kidneys. Muscular injuries release myoglobin, which can lead to kidney failure and a build-up of toxins in the body. This mechanism probably would have taken hours or even days to cause death alone. Fourth, the combined effect of the pain from all these injuries could have cause her body to go into shock and her blood pressure to drop, causing cardiac arrest. This mechanism might take as little as a few minutes to cause death.
In short, Dr. McCormick could not point to one specific mechanism as responsible for Corrales's death, but opined there was a combination of them at work. He had no doubt the multiple blunt impact injuries throughout her body caused her death. He did not find the methamphetamine in Corrales's blood to be a significant factor in causing her death.
The defense also called a forensic pathologist, Dr. Katherine Raven, who reviewed the autopsy report and photographs, toxicology reports, photographs from the crime scene, court transcripts, and law enforcement reports. Dr. Raven believed some minimal lividity was present in Corrales's body, but it was difficult to determine with all her injuries. Corrales's injuries were significant "on the outside" and "covered a large part of the body," but they were superficial, and there was no evidence of significant internal hemorrhaging. She could not say to a medical certainty that bleeding out into the soft tissues, concussive head injury, kidney failure, or shock caused her death. She opined that the level of methamphetamine in Corrales's blood could potentially cause death, and she could not exclude methamphetamine as contributing to her death. But she could not say to a medical certainty what exactly caused Corrales's death. If she had done the autopsy, she would have called the cause of death "undetermined."
Three of defendant's ex-girlfriends testified about his prior acts of domestic violence against them. Jane Doe 1 dated defendant on and off from 2003 to 2007. He physically abused her several times. On one occasion he hit her and dragged her by the hair, and on another occasion he broke the window on the car and pulled her out of the car to hit her. He would call her "bitch, slut, [and] whore" when he hit her. He was under the influence of drugs when he hit her.
Jane Doe 2 dated defendant for three months in 2005 or 2006. During an abusive incident, he hit her and got on top of her, then shoved a wooden stick down her throat. She thought he was going to kill her. A friend pushed defendant off her. The next day, both of Jane Doe 2's eyes were black, and half her face was swollen. Defendant took pills and drank alcohol the day of that incident.
Jane Doe 3 dated defendant in 2007 and 2008. Defendant physically abused her over 20 times. He was also very controlling. He would not allow her to take a shower by herself, drop her children off at their father's house, or even go to work sometimes. He called her names like, "[b]itch, cunt, slut," and "worthless." The first time he physically abused her, he saw a picture of an ex-boyfriend in her telephone. He became upset and kicked and slapped her. After that first time, he punched her on many occasions. On one of those occasions, they argued in the bedroom while her children were sleeping on the bed. He threw her on the floor and kicked her probably 10 times, punched her in the face probably four times, and punched her in the chest probably five times. He told her, "You're worthless, nobody cares about you, nobody loves you, you're lucky I love you." She was crying uncontrollably, could not breathe, could not feel her face, and could not move. She begged defendant to take her to the hospital. He initially refused and left the house. He returned because he had forgotten something, and she begged again, saying she would tell the hospital personnel she was mugged to explain her injuries. Only then did defendant take her to the hospital. At the hospital, she was given painkillers but did not stay overnight. On another occasion, defendant threatened her by saying he knew "a special place . . . where he would dump bodies," and Jane Doe 3 and her children "would end up there." "[E]verything and anything" would anger defendant and start arguments between the two of them. Defendant drank alcohol often, and while he was violent even when not drinking, the alcohol made him more violent.
The People's domestic violence expert explained that, oftentimes, domestic violence follows a progression and escalates. Abusers may start out with emotional abuse, then progress to physical abuse, and then to using weapons, at which point concern over the abuser killing the victim becomes high.
III. DISCUSSION
A. Substantial Evidence of Intent to Kill Supported the Special Circumstance Finding
The People alleged the murder of Corrales "was intentional and involved the infliction of torture," under section 190.2, subdivision (a)(18). The jury found this special circumstance to be true. Defendant argues that "[d]espite the horrific nature of [his] actions," there was insufficient evidence he intended to kill Corrales within the meaning of section 190.2, subdivision (a)(18). We disagree.
The standard we apply on review is well established. "On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could" make the challenged finding beyond a reasonable doubt. (People v. Stanley (1995) 10 Cal.4th 764, 792.) We presume in support of the finding "'the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Johnson (1980) 26 Cal.3d 557, 576.) We do not resolve credibility issues or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The trier of fact resolves such issues or conflicts. (Ibid.) Unless testimony is "physically impossible or inherently improbable," the testimony of a single witness suffices to support a finding. (Ibid.) "Even if we might have made contrary factual findings or drawn different inferences, we are not permitted to reverse the judgment if the circumstances reasonably justify those found by the jury." (People v. Perez (1992) 2 Cal.4th 1117, 1126.)
"To prove a torture-murder special circumstance, the prosecution must show that defendant intended to kill and had a torturous intent, i.e., an intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose." (People v. Streeter (2012) 54 Cal.4th 205, 237.) Defendant does not challenge the sufficiency of the evidence supporting torturous intent, only intent to kill.
Without question, there was substantial evidence of intent to kill in this case. A defendant who intends to kill another "does not often declare his [or her] state of mind either before, at, or after the moment" the defendant acts. (People v. Lashley (1991) 1 Cal.App.4th 938, 945.) "Absent such direct evidence, the intent obviously must be derived from all the circumstances of the" killing, including the "killer's actions and words." (Id. at pp. 945-946.) This case, however, presents one of those rare instances in which there was direct evidence of intent to kill. Defendant's neighbors, Elvira and her boyfriend, heard a man yelling, "I'm going to kill you," or "I'm going to F'ing kill you," on the morning of Corrales's death. The voice was coming from defendant's house, and Elvira recognized it as defendant or "Danny." None of the evidence indicated "Danny" was at the house that day, and in fact, defendant admitted no one else was there when he was beating and whipping Corrales. The jury was entitled to credit defendant's express declaration of his state of mind and conclude that he meant what he said—he was going to kill Corrales. The evidence of his statements alone constituted substantial evidence of his intent to kill.
Defendant concedes that, "[o]rdinarily, statements of this kind alone would likely be sufficient to prove intent to kill under the applicable standard." He contends they are not in this case because Elvira's estimate of when she heard the yelling—at around 7:30 or 8:00 a.m.—was off by at least a few hours, given that Giselle and the next door neighbor saw defendant and Corrales working in the backyard around this time, not fighting. This inconsistency in the evidence does not concern us. The jury was entitled to credit Elvira's testimony about what she heard, even if it believed her timing was off. Indeed, the court properly instructed the jury that it "may believe all, part, or none of any witness's testimony." (CALCRIM No. 226, italics added.) We may not reverse simply because the jury resolved conflicts in the evidence or credibility issues in favor of the People. (People v. Ennis (2010) 190 Cal.App.4th 721, 732 [appellate court may not reverse because it "disbelieve[s] the witnesses' claims about what happened, on the ground that the surrounding circumstances, or other evidence adduced in the case, makes those claims seem unworthy of belief."].)
Moreover, in this case much more than defendant's statements alone establish his intent to kill. Defendant brutally struck and beat the victim in excess of 100 times with a whip made of a white plastic pipe with cables wrapped around it, a pipe, and a wood handle causing bruising to a degree unseen previously by the veteran law enforcement officers investigating the crime, the deputy coroner, and the forensic pathologist who had conducted more than 4,000 autopsies. All of this occurred while the victim continuously begged him to stop.
Defendant also contends his "history as a chronic and serial domestic abuser" weighed against an intent to kill. He asserts his name-calling and threats to kill Corrales "were part of the pattern of physical and verbal abuse which [defendant] manifested towards all the women he lived with, rather than evidence that he harbored an actual intent to kill [Corrales]." Defendant suggests that, because he treated past girlfriends similarly but did not kill them, he should not be perceived as harboring an intent to kill Corrales.
But the jury could reasonably conclude this time with Corrales was different. The domestic violence expert explained how abusers may progressively escalate their violence. Defendant's history demonstrated such a progression. Jane Doe 1 described two incidents in which defendant used his hands to hit her. Next, Jane Doe 2 described a more serious incident in which defendant hit her, got on top of her, and shoved a stick down her throat. Jane Doe 3, the most recent of his ex-girlfriends before Corrales, described how defendant had progressed to abusing her over 20 times, and on one occasion, he hit her at least 19 times and sent her to the hospital. He also impliedly threatened her with death, saying he knew a place to dump bodies, and she and her children would end up there. The jurors could reasonably infer from this pattern that defendant's propensity for domestic violence was escalating, and even if he had never killed someone before, he meant it when he told Corrales he was going to kill her. Thus, far from disproving defendant's intent to kill, his history of abuse supported the special circumstance finding of intent to kill. B. Substantial Evidence Supported the Verdict of First Degree Murder
The People advanced two theories of first degree murder at trial—murder that was willful, deliberate, and premeditated, and torture murder. (§ 189.) Defendant contends insufficient evidence supported either theory. He argues there was insufficient proof of premeditation and deliberation. With respect to torture murder, defendant argues there was insufficient evidence of acts involving a high probability of death. We disagree on both counts.
1. Substantial Evidence of Premeditation and Deliberation
Defendant initially contends there can be no premeditation without an intent to kill, and there was insufficient evidence of his intent to kill. We have already rejected that argument in part III.A. We thus move to his next argument that other circumstances showing premeditation and deliberation were absent.
To prove a murder "was 'deliberate and premeditated,'" it is not "necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act." (§ 189.) "'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time. "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. . . ." [Citations.]'" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
"Courts often use the three factors set forth in People v. Anderson (1968) 70 Cal.2d 15[, pages 26 to 27] . . . as a guide to analyzing whether there is substantial evidence of premeditation and deliberation. [Citation.] Those three factors are (1) planning activity (i.e., facts about what the defendant did prior to the killing that show he was engaged in activity directed toward killing); (2) motive (i.e., facts about the defendant's prior relationship with the victim from which the jury could reasonably infer a motive to kill the victim); and (3) method (i.e., facts about the manner of the killing from which the jury could reasonably infer that the defendant had a preconceived design to take the victim's life in a particular way)." (People v. Shamblin (2015) 236 Cal.App.4th 1, 10.) Anderson did not, however, purport "to define the elements of first degree murder" or "establish an exhaustive list that would exclude all other types and combinations of evidence . . . ." (People v. Perez, supra, 2 Cal.4th at p. 1125.) "The Anderson guidelines are descriptive, not normative." (Ibid.) "[W]hile helpful for purposes of review, [they] are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." (Ibid.) Furthermore, they need not be present in some special combination. (People v. Shamblin, supra, at p. 10, fn. 16.)
All the same, the record here reveals evidence of premeditation and deliberation in motive, planning activity, and method. As to motive, defendant was angry at Corrales for breaking his telephone, refusing to delete some photographs from her telephone, and not "back[ing] him up." In his own words, he was full of rage towards her. Even though these motives were "totally unreasonable, this is true of any senseless killing." (People v. Pensinger (1991) 52 Cal.3d 1210, 1238.) "[T]he incomprehensibility of the motive does not mean that the jury could not reasonably infer that the defendant entertained and acted on it." (Ibid.) As to planning activity, defendant took the time to arm himself with several different weapons, including a whip he made out of materials around the house (electrical cord, tape, and plastic pipe). He also inflicted the severe beating on Corrales after Giselle and her children left, so just he and Corrales were in the house.
Perhaps the most significant evidence of premeditation and deliberation comes from the manner of killing. The evidence showed defendant inflicted the 100-plus injuries on Corrales's body at around the same time. This was not a quick attack or momentary outburst. It would have taken him a considerable period to hit and whip her that many times. Consistent with this evidence, Elvira heard the yelling for close to an hour. During the attack, Corrales told him she was in pain and pleaded with him to stop. Defendant nevertheless said he had to continue. He had ample time during this attack to weigh the considerations and decide in advance to kill. Given the length of time it would have taken to inflict all these wounds, and the defendant's decision to switch weapons, "it is difficult to characterize defendant's conduct as 'mere rash and unconsidered impulse.'" (People v. Perez, supra, 2 Cal.4th at p. 1127.) Moreover, his express declaration that he was going to kill her was evidence of his deliberative thought process. There can be no question that substantial evidence supported this theory of first degree murder.
2. Substantial Evidence of Acts Involving a High Probability of Death
"The elements of torture murder are: (1) acts causing death that involve a high degree of probability of the victim's death; and (2) a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose." (People v. Cook (2006) 39 Cal.4th 566, 602.)
As we have explained, defendant challenges the evidence of the first element only. He asserts there was insufficient evidence of this first element because "neither of the forensic experts agreed on the actual cause of death," and "both experts agreed they could not point to an actual mechanism which caused [Corrales]'s death." We are unmoved by this argument. Dr. McCormick had no doubt Corrales's multiple blunt force injuries caused her death. He explained at length how she suffered over 100 separate impacts all over her body, causing bruising, abrasions, and internal hemorrhaging. None of the witnesses in this case had ever seen such extensive bruising. As to the precise mechanism, it is true Dr. McCormick could not pinpoint one. Instead, he opined some combination of four mechanisms led to her death. This evidence demonstrated the many, many injuries defendant inflicted with a homemade whip and wooden stick or pipe caused Corrales's death. Surely the jury could conclude from these facts that defendant committed acts involving a high probability of death. Defendant's argument amounts to a request for us to reweigh the evidence and credit Dr. Raven's competing testimony that the cause of death was undetermined, and that Corrales's methamphetamine use contributed to her death. This we cannot do. (People v. Young, supra, 34 Cal.4th at p. 1181 [the trier of fact resolves credibility issues and conflicts in the evidence].)
Moreover, defendant has not pointed to any case that supports his argument. He relies on an overly broad reading of People v. Edwards (2013) 57 Cal.4th 658, to no avail. The Edwards court found substantial evidence of torture murder where the defendant inflicted multiple injuries on the victim, including ligature strangulation, a cut to her eardrum, blunt trauma causing bleeding near her pancreas, blunt trauma to her head, and tearing and bruising to her vaginal and rectal areas. (Id. at pp. 716-718.) The defendant also bound, gagged, and placed a hood over the head of the victim. (Id. at p. 717.) The court held the jury could reasonably infer from the "totality" of these facts that each element of torture murder had been satisfied. (Id. at pp. 717-718.)
Defendant insists the evidence against him was not comparable to the strangulation, binding, and gagging in Edwards, and therefore the "much weaker" evidence here cannot support a finding of acts involving a high probability of death. The Edwards court never purported to set forth a template for all torture murder cases going forward. Whether acts involve a high probability of death is an inherently fact intensive inquiry for the jury that will necessarily vary from case to case. (See, e.g., People v. Chatman (2006) 38 Cal.4th 344, 391 ["Binding may take place in some instances of torture, but is not required to prove it."].) The evidence in this case was not "much weaker." It simply showed a different type of torture than what occurred in Edwards. C. The Court Did Not Misinstruct the Jury on Malice Aforethought, and Any Error Was Nonetheless Harmless
Defendant's last contention relates to the court's modification of the jury instruction on involuntary manslaughter, CALCRIM No. 580. He contends the court modified CALCRIM No. 580 so that it erroneously instructed the jury that malice aforethought was not necessarily required to find defendant guilty of murder. Looking at the instructions as a whole, we disagree the court erred. Even assuming it did, any error was harmless beyond a reasonable doubt.
Defendant did not object to the modified version of CALCRIM No. 580 at trial. We nevertheless consider the merits of his contention. The forfeiture rule does not apply to an incorrect statement of the law in a jury instruction, or "if the instructional error affected the defendant's substantial rights." (People v. Franco (2009) 180 Cal.App.4th 713, 719.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice[,] if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) --------
1. Additional Procedural Background
The court correctly instructed the jury on malice aforethought in connection with first and second degree murder. It instructed the jury that murder required malice aforethought, which could be express malice or implied malice. (CALCRIM No. 520.) It further defined express malice and implied malice, stating that defendant acted with express malice if he unlawfully intended to kill, and he acted with implied malice if he deliberately acted with conscious disregard for human life. (Ibid.) The court also correctly defined the theories of first degree murder—willful, deliberate, and premeditated murder and torture murder. (CALCRIM No. 521.) It defined torture murder thusly: "The defendant murdered by torture if: [¶] 1. He willfully, deliberately, and with premeditation intended to inflict extreme and prolonged pain on the person killed while that person was still alive; [¶] 2. He intended to inflict such pain on the person killed for the calculated purpose of revenge, extortion, persuasion, or any other sadistic reason; [¶] 3. The acts causing death involved a high degree of probability of death; [¶] AND [¶] 4. The torture was a cause of death." (Ibid.)
Subsequently, the court instructed the jury on involuntary manslaughter with a modified version of CALCRIM No. 580. The pertinent portion of the pattern instruction states: "In order to prove murder or voluntary manslaughter, the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill, or with conscious disregard for human life. If the People have not met either of these burdens, you must find the defendant not guilty of murder and not guilty of voluntary manslaughter." (CALCRIM No. 580.) The court modified the instruction by adding the following italicized language to the first sentence: "In order to prove murder or voluntary manslaughter, the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill, or with intent to inflict extreme and prolonged pain for a calculated purpose, or with conscious disregard for human life."
2. Analysis
Defendant contends the modified version of CALCRIM No. 580 permitted the jury to convict him of murder based only on an intent to inflict extreme and prolonged pain for a calculated purpose, which does not constitute malice aforethought. He asserts this modified instruction irreconcilably conflicted with the court's correct instructions on malice aforethought, and the court therefore removed the required mental state from the jury's consideration, resulting in federal constitutional error.
We review claimed instructional errors de novo. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.) "[W]e must view a challenged portion 'in the context of the instructions as a whole and the trial record' to determine '"whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.'" (People v. Reliford (2003) 29 Cal.4th 1007, 1013.) "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Viewed in this manner, we find no error. There was no reasonable likelihood the jury applied the challenged instruction in an objectionable manner. CALCRIM No. 580, defining involuntary manslaughter, did not purport to be a complete definition of murder. Even if the jury read CALCRIM No. 580 and concluded defendant acted with intent to inflict extreme and prolonged pain for a calculated purpose, we presume the jurors still considered the instruction setting forth the elements of murder, CALCRIM No. 520, which defined express and implied malice and told them the People had to prove one. We thus disagree that the challenged instruction "removed" the element of malice aforethought from the jury's consideration.
Furthermore, assuming for the sake of argument that federal constitutional error occurred, it is clear any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) If other aspects of the verdict leave no doubt the jury made the findings necessary for malice aforethought, any erroneous instruction on the issue was harmless. (People v. Chun (2009) 45 Cal.4th 1172, 1205.) This was the case here. Regarding the torture-murder special circumstance, the court instructed the jury that the People had to prove "[t]he defendant intended to kill Shirley Chanel Corrales," among other things. The jury necessarily found defendant had the intent to kill when it found this special circumstance to be true. Unlawful intent to kill is also the mental state required for express malice (People v. Saille (1991) 54 Cal.3d 1103, 1114), and this finding was supported by substantial evidence, as we discuss in part III.A. Accordingly, regardless of any error in the instructions, we know the jury found the mental state required for malice aforethought.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.