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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX

THE PEOPLE,                                                                       2d Crim. No. B080123

                                Plaintiff and Respondent,                         Santa Barbara County)
                                                                                              (Super. Ct. No. SM80367)
v.

ANGELICA TAFOYA,

                                Defendant and Appellant.
_____________________________________/

    Defendant Angelica Tafoya appeals her judgment of conviction of involuntary manslaughter. (Pen. Code § 192, subd. (b) We reverse.

FACTS

    In the early morning of November 22, 1992, defendant Angelica Tafoya fatally stabbed her boyfriend Arturo Camacho. The two had quarreled that morning concerning his whereabouts the prior evening. Camacho was under the influence of alcohol and cocaine, according to toxicological evidence. He went to the kitchen and took a six-inch knife from the drawer. Camacho swung the knife at Tafoya, missing her stomach. He then "wiggled" the knife against her forehead, threatening "I'm going to kill you, and you won't have any other man." Tafoya "saw death" and believed she was going to die. Camacho then dropped the knife and walked toward the bedroom.

    Tafoya picked up that knife or perhaps another, followed Camacho and stabbed him in the back. He turned towards her and said: "My love, you just injured me." Tafoya summoned medical assistance. Camacho died from a stab wound that penetrated his heart and left lung to a depth of five inches.

    Tafoya informed police officers that she stabbed Camacho, adding that "[h]e’s always hitting me." She stated that Camacho had twisted her arm, pulled her hair, hit her and kicked her that morning. A family member residing in the household heard Tafoya plead with Camacho that morning: "Let go of me. Leave me alone. Don't take advantage of me." Neighbors also heard the couple "arguing, screaming [and] yelling" that morning.

    Doctor Nancy Kaser-Boyd, a forensic psychologist who studied family violence, interviewed Tafoya and read interviews of her family members and opined that she suffered from battered woman syndrome. The syndrome results when a woman is victimized by unpredictable physical violence from her partner. Doctor Kaser-Boyd opined Tafoya could have believed she was in imminent danger of great harm when Camacho’s violence escalated to include use of a weapon.

    Lee Bowker, Ph.D., a sociology professor who had studied family violence and battered women, interviewed Tafoya and also opined that she suffered from battered woman syndrome. Doctor Bowker based his opinion upon the physical violence and psychological abuse Tafoya suffered, including Camacho’s threats to kill her.

    Tafoya and Camacho had lived together for one year prior to his death. During this time, he drank alcohol frequently and physically and psychologically abused Tafoya. Roommates, neighbors, friends and family members saw Camacho slap, hit, kick and otherwise mistreat Tafoya. She suffered facial injuries, nose bleeds, and bruises from these assaults. Tafoya summoned police officers on several occasions after Camacho assaulted her. She was reluctant to complain, however, because she feared deportation or more serious beatings from Camacho.

    Tafoya testified that Camacho struck her once or twice a week. Several beatings were severe, involving kicking, pushing Tafoya’s head into the sand at the beach, shaking, and twisting her arm behind her back. She feared leaving him because he threatened to kill her or take her infant son from her. She stated she stabbed Camacho because she feared he might kill her and she "just wanted to frighten him."

    The jury convicted Tafoya of involuntary manslaughter. (Pen. Code, § 192, subd. (b).) The trial judge sentenced her to a prison term of four years, including one year for use of a deadly weapon. (Pen. Code, § 12022, subd. (b).)

    Tafoya appeals and contends the trial court erred by refusing her self-defense instruction concerning acting quickly and more harshly in light of prior assaults by the victim.

DISCUSSION

    Tafoya asserts the trial court erred by refusing to instruct the jury with this self-defense instruction: "One who has received threats against her life or person made by another is justified in acting more quickly and taking harsher measures for her own protection in the event of assault, either actual or threatened, than would be a person who had not received such threats. If in this case you believe that Arturo Camacho made prior threats against the defendant and that the defendant, because of such threats, had reasonable cause to fear greater peril in the event of an altercation with Arturo Camacho, you are to consider such facts in determining whether the defendant acted reasonably in protecting her own life or bodily safety." Tafoya contends failure to instruct the jury with this self-defense instruction was prejudicial under any standard of review.

    It is well settled a defendant asserting self-defense is entitled to an instruction on the effect of prior threats or assaults by the victim on the reasonableness of defendant's conduct. (People v. Moore (1954) 43 Cal.2d 517, 527-528; People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663-1664.) "[A]n instruction on the effect of antecedent threats known by a defendant is required where evidence establishes both threats of death or great bodily harm made by the deceased against the defendant and the defendant's belief and reliance thereon as influencing or justifying his actions. [Citations.]" (People v. Pena (1984) 151 Cal.App.3d 462, 475.)

    The trier of fact is entitled to consider defendant's knowledge of prior threats to determine whether he acted as "‘la reasonable person would act in protecting his own life or bodily safety.'" (People v. Moore, supra, 43 Cal.2d 517, 528.)

    The prosecutor convinced the trial court to refuse Tafoya’s instruction because it was confusing. In People v. Moore, supra, 43 Cal.2d 517, 528-529, the California Supreme Court approved a similar instruction that stated the jury should consider antecedent threats and violence by the victim in determining whether defendant acted "'in a manner which a reasonable person would act in protecting his or her own life or bodily safety.’" Standing alone, Tafoya’s proposed instruction could possibly be interpreted to direct the jury to consider whether she acted subjectively as opposed to objectively in protecting her own life or bodily safety. Arguably it might have been more clear had the last part of the instruction told the jury to determine " . . . whether the defendant acted as a reasonable person in protecting her own life or bodily safety."

    Tafoya’s proposed instruction, however, was not confusing in light of the other instructions on self defense. The district attorney was perhaps too persuasive. As Tafoya points out, the jury was given a plethora of instructions on "reasonableness" through numerous other instructions on self defense, CALJIC 5.12, 5.13, 5.30 5.50 and 5.51. CALJIC 5.30 for example, speaks of a person's right to use that amount of force which appears reasonably necessary to a reasonable person in similar circumstances.

    We reject the attorney generals suggestion at oral argument that Tafoya’s proffered instruction was superfluous, and that the other instructions given by the court on self defense were sufficient.

    The instruction here was particularly significant. It informs the jury that a person in the circumstances of Tafoya may be justified in acting more harshly and more quickly than would any other person asserting the defense of self defense. Tafoya had stabbed her husband in the back just seconds after he had threatened her life and held a knife to her temple.

    The absence of Tafoya’s proffered instruction lightened the prosecution's burden, a burden memorialized in CALJIC No. 5.15 which informs the jury that the burden is on the prosecution to prove the homicide was unlawful. We agree with Tafoya, that on retrial this instruction should also be given.

    Our view is not affected by Tafoya’s conviction of involuntary manslaughter, a far less serious offense than first degree murder. We agree with Tafoya that the People's argument as to the strength or persuasiveness of the defense as to this charge is beside the point. If properly instructed, the jury would have considered Camacho’s prior conduct toward Tafoya. The jury would also have considered the reasonableness of Tafoya’s conduct under the circumstances, and would have known that she would have been allowed to act more quickly and take harsher measures than if Camacho had not threatened her in the past. It is reasonably probable Tafoya would have obtained a better result had the jury received the instruction as stated in People v. Moore, supra, 43 Cal.2d 517, 527-528. (People v. Watson (1956) 46 Cal.2d 818, 836.).

    On retrial, the trial court shall instruct the jury with the Moore instruction as well as CALJIC No. 5.15.

    The judgment of conviction is reversed.

GILBERT, J.

We concur:

STONE, P. J.
YEGAN, J.

Richard A. St.John, Judge
Superior Court County of Santa Barbara

Maureen DeMaio, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General; George Williamson, Chief Assistant Attorney General; Carol Wendelin Pollack, Senior Assistant Attorney General; Sanjay T. Kumar, David A. Warshaw, Deputy Attorneys General, for Plaintiff and Respondent.