KANE, J.
Defendant Jose Blas Zavala was convicted of murdering his girlfriend after she told him she was involved with someone else and no longer wished to have a relationship with him. On appeal, he contends (1) the trial court erred in admitting various pieces of evidence in the guilt phase, (2) CALCRIM No. 852 violated his due process rights, (3) the trial court erred in denying the motion for new trial or a new jury, (4) the trial court erred in excluding irresistible impulse evidence in the sanity phase, and (5) the trial court should have dismissed, not stayed, count 3. We will reverse the judgment of conviction on count 3 and affirm in all other respects.
On February 18, 2008, the Merced County District Attorney charged defendant with first degree murder (Pen. Code, § 187;
Defendant entered dual pleas of not guilty and not guilty by reason of insanity.
A jury found defendant guilty on counts 1, 2, and 3, but not guilty on count 4, and found the firearm allegation true. In the sanity phase, the jury found that defendant was legally sane at the time of the crimes.
The trial court sentenced defendant to 50 years to life in prison, as follows: 25 years to life on count 1, plus 25 consecutive years on the firearm enhancement; three consecutive years on count 2; and three years on count 3, stayed pursuant to section 654.
At about 1:30 p.m. on December 3, 2007, Deputy Sheriff Weaver responded to a call reporting a suspicious person—a Hispanic male in dark clothing, carrying a walking stick and standing on the canal bank in Stevenson, about 30 miles from Merced. When Weaver arrived, defendant put his hand in his pocket and turned away. Weaver drew his gun and ordered defendant to show his hands. After several demands, defendant turned around and pointed the revolver he was holding to his own head. Weaver convinced defendant to put the gun down and sit on the bumper of the patrol vehicle.
Deputy Sheriff Witt sat down next to defendant, who was hanging his head down. Witt asked defendant if he was all right. Defendant responded, "Is she okay?" Witt asked him who he was talking about and defendant explained he was talking about his girlfriend, Jennifer Hernandez. He volunteered that he had shot her three or four times because she had a new boyfriend. He said he took his two-year-old son (the boy) out of the apartment before shooting Jennifer, then he put the boy back in the apartment before he left. He got a ride from Merced to Atwater, then walked to Stevenson. He gave Witt Jennifer's address in Merced.
Defendant's gun was a five-chambered .38-caliber revolver. Four of the five bullets had been fired and the hammer was pulled back on the last one.
Merced police officers were dispatched to investigate the alleged shooting. When officers entered Jennifer's unlocked apartment, they found Jennifer on the floor. Her body was cold and in full rigor. The boy was sitting on the floor watching television, less than 10 feet from Jennifer's body. Jennifer had been shot in the upper back and the back of the head with . 38-caliber bullets. A lamp shade had also been hit by a bullet, which then passed through a wall and into the freezer. Another spent bullet was on the floor.
Detective Court, lead detective on the case, interviewed defendant throughout that afternoon and evening.
Defendant and Jennifer never had problems, so defendant did not know why she "cut him off" around November 10. She did not want him to come to her apartment and she stopped calling him. He thought Thanksgiving, November 22, 2007, was the last day she called him to come over. He went to her apartment and spent a little while with her that day. She was just not talking to him anymore. Sometimes she would call him two or three times per week for him to come and see the boy, but she did not like to talk to him.
At about 7:30 a.m. on the morning of the shooting, defendant went to Jennifer's apartment to see the boy. Jennifer did not know defendant was coming. At first, defendant told Detective Court that his cousin took him to the apartment, then he said he drove himself in a black BMW he had just bought for Jennifer. Detective Court encouraged defendant to relax and tell the truth. Defendant said he parked the car on the street and waited for the bus. When Jennifer returned from taking her daughter to the bus stop, defendant appeared suddenly and she told him he scared her. They went into her apartment. Defendant touched her hand and she pulled away. She told him she loved another man and she had done everything with him. Defendant did not say anything. He took the boy outside and left the door unlocked. The boy played outside; he liked to play around cars. Defendant went to his car and got the gun. He had just obtained the gun that morning in Merced. It was a five-cylinder .38-caliber revolver. When he returned, he entered the apartment, leaving the boy outside. Jennifer was standing in the kitchen. Jennifer started yelling at him, asking him where the boy was and asking why he left him outside. Defendant did not respond. He just took out the gun and fired it four times. Detective Court asked him if he shot Jennifer and he nodded his head. He explained, "I just came back and I fired." Jennifer was saying "no." One shot went into the floor and defendant did not know where the other three went. The last shots were fired at close range because Jennifer threw herself on him. He walked out, went to the car, and drove away. He left the boy in the apartment parking lot. Defendant drove to a field, parked the car, and started walking.
Defendant then explained that the previous day, he saw a man and woman in a store in Atwater. Defendant was in the store to buy brake fluid. The man asked defendant for a ride to Merced. The woman could speak Spanish well, but the man spoke only limited Spanish. The man asked defendant if he was Sureño or Norteño. Defendant said he was not anything. The man, who was wearing red, said he was Norteño. Defendant described himself to Detective Court as "like a [S]ureño." Defendant did not know the man or his name, but it could have been Daniel or David. Defendant gave the man and woman a ride. During the ride, defendant talked about wanting to buy the boy a ride-on motorized car for Christmas. They did not talk about guns. Defendant remembered that he exited the freeway on 16th Street and turned left on V Street. He then turned right on other streets, turned left on another street, then drove into an alley. The man and woman got out and defendant drove back to Atwater.
The next morning, the day of the shooting, the man called defendant's cell phone between 5:30 and 6:00 a.m. Defendant believed the man got his number when he borrowed defendant's cell phone. (Detective Court questioned this repeatedly and encouraged defendant to tell the truth.) Defendant had previously said that a man called him to come look at the gun, but now he said the man told him he had a gift for him and he might be able to get the toy he wanted for the boy. Defendant asked him where they would meet and the man said he would find him on V Street. When defendant found the man, defendant lowered his window and the man gave him a gun. Defendant did not know the man was going to give him a gun, and he got sad because he thought the man was going to give him a toy for the boy. Defendant knew the gun was loaded with five bullets, even though he did not open it to look. He put the gun under the seat, told the man he was on the way to see the boy, and left.
Defendant explained that when he went to Jennifer's apartment from there, he parked the car in the Save Mart parking lot just across Olive Avenue. (Detective Court later testified that defendant's car was parked about 85 or 90 yards from Jennifer's apartment. Jennifer did not like defendant to drive, so he always parked in that lot. He walked around outside the stores for 15 or 20 minutes until he thought Jennifer would be returning from the bus stop. Then he crossed the street and went through a hole in the fence (or jumped the fence) into the apartment complex. When he reached Jennifer and the boy, she was already opening the apartment door. She let defendant in and he started playing with the boy. Jennifer put on some music and sat down. Defendant loved her a lot and he tried to touch her hand, but she pushed it away. She told him not to touch her and to calm down. She said she did not want him touching her. She did not like his hugs and kisses anymore and she did not love him anymore. She said she had someone else and they had had sex and done everything together.
Defendant took the boy and went outside. He explained to Detective Court, "I left with my son outside because I didn't want him to be there." He took the boy to the apartment parking lot, left him there, jumped the fence, and went across the street to his car. Detective Court asked, "So you ran over there to get the, you went to get the gun because you wanted to kill her? Shoot her?" Defendant nodded and answered, "Yeah." Detective Court said, "[Y]ou were mad at her? [¶] ... [¶] You were hurt?" Defendant said, "Yeah," and he hung his head. He said he put the gun in his back pocket, walked back across the street, and jumped the fence. The boy was still outside, playing by some trees where he liked to play. Jennifer was not outside because she did not know defendant had left the boy alone. Defendant walked past the boy, but the boy did not follow him because he liked to be outside. Defendant's trip to his car and back took only a minute or so because there was no traffic at that hour.
Defendant opened the apartment door, walked in, and closed the door. At this point in the interview, Detective Court gave defendant a fake training gun and asked him to demonstrate what he did. Defendant explained that when he entered the apartment, Jennifer came out of the kitchen. She was wearing a black sweater and grey pajama pants. She yelled at him, asking him where the boy was and telling him not to leave him outside alone. Defendant did not answer; he just pulled out the gun. He pulled the hammer back and Jennifer screamed. The first bullet hit the floor. Defendant said, "[It] hit the ground and she tried to run to the room.... And then she came at me and wrestled with me." She tried to grab the gun from his hands. Defendant explained that he did not know how it all happened. At that point, Detective Court asked defendant, "[Y]ou don't know if you pointed the gun at her?" Defendant answered, "Yes, well I wanted to hit her." Detective Court asked, "Did you want to kill her or did you just want to hurt her? Or scare her?" Defendant said, "No, I thought about killing her." Defendant repeated that the boy was not in the apartment during the shooting; he was still outside in the parking lot. But defendant did not see him when he left. He was not thinking. He just ran to his car. Defendant explained that the boy must have returned to the apartment by himself because he was able to open the unlocked door and go inside the apartment on his own.
When defendant got in his car, he drove toward the fields. He parked the car and walked because he did not know what to do. He did not discard anything from his car or person.
Defendant asked Detective Court about the boy and Detective Court told him the boy was fine. Then defendant asked about Jennifer. When Detective Court told him she was dead, he said, "Huh? ... my baby." Defendant expressed disbelief, put his head down, and started to cry. Detective Court left the room briefly, then returned and ended the interview.
At around 6:00 p.m., Detective Court interviewed defendant again and defendant explained the location of his car. Officers located the car in an orchard in a rural area between Atwater and Livingston. Nothing relevant, including drugs or paraphernalia, was found inside.
On cross-examination, Detective Court explained that he interviewed defendant a third time at about 8:30 p.m. Detective Court asked defendant for more details about the shooting. Defendant explained that he and Jennifer struggled for the gun. Defendant said he and Jennifer had gotten a Christmas tree two days before the shooting and there had been no problems between them at that time.
Detective Court testified that he did not believe everything defendant told him in the interviews. For example, Detective Court did not believe defendant's explanation of how he obtained the gun from a stranger named Daniel who somehow obtained defendant's cell phone number and called him with a veiled promise of a gift. Defendant assumed the gift was a ride-on toy truck, and was sad that it turned out to be a revolver. In the detective's opinion, based on his knowledge and experience, people do not give away guns on the street. Guns are very valuable, especially to criminals. Detective Court would not expect a person to give away a loaded, operable . 38-caliber revolver to someone they had just met, particularly if one person was a Norteño and the other Sureño. It was an unbelievable story. In addition, defendant's residence was found to contain matching ammunition and a matching holster.
Detective Court also did not believe defendant's explanation of a continuing struggle with Jennifer over the gun. In Detective Court's experience with struggle-type homicides, they did not result in wounds to the back of the head or the back.
The pathologist who performed the autopsy on Jennifer's body testified that the head wound, which caused significant damage to the cerebellum, may have been fatal. The wound to the back, however, was certainly fatal because the bullet caused massive damage as it traveled through Jennifer's chest cavity. It would have caused death within seconds. The pathologist found no evidence that the gun was fired at close range.
When officers searched defendant's apartment in Atwater, they found handwritten notes in Spanish, two letters addressed to defendant in jail, a four-page typed letter in Spanish (the typewritten letter), a holster that fit defendant's . 38-caliber revolver, ammunition for the revolver, body armor, court minute orders, criminal protective orders, and a photograph of defendant and Jennifer in a wallet. No drugs or paraphernalia were found.
The typewritten letter discussed defendant's past, his drug use, his criminal conduct, and his involvement with Jennifer.
The two letters addressed to defendant in jail bore Jennifer's return address, but her daughter's name. One, dated October 12, 2007, contained a letter and a photograph of defendant with the boy. Another, dated October 22, 2007, contained a letter mentioning something about marriage and stating that defendant was a good father "to our son." Detective Court testified that on those dates, defendant was in jail for making a criminal threat against Jennifer. The investigating officer reported that defendant had told Jennifer: "I don't want to be your friend.... I'm gonna go fucking crazy and kill everybody in the house." When defendant was released from jail on November 5, 2007, he was ordered to complete a 52-week domestic violence program. He enrolled and attended classes on November 9, 16, 23, and 30, 2007.
At the time of the shooting, defendant was prevented by a protective order from contacting Jennifer. However, on November 8, 2007, Jennifer went to court and requested that the protective order be modified to allow defendant to visit the boy.
Danna Jensen, a drug counselor for the dependency drug court, was Jennifer's sponsor in a 12-step program. They met in September 2005 and became close friends. At that time, Jennifer was addicted to methamphetamine and alcohol. Jensen guided Jennifer through her program and helped her regain custody of her daughter. Near the end of her program, Jennifer gave birth to the boy. Defendant and Jennifer had a tumultuous relationship, and defendant was upset because Jennifer was having a relationship with another man.
On September 5, 2007, Jennifer called Jensen. Jennifer was crying, fearful, and almost hysterical. She said defendant had called her numerous times and she did not know what to do. She said defendant told her he did not want to be her friend and he was "going to go fucking crazy." He said he was going to kill her and everybody in the house. She hung up, but he called back and told her he meant it and she had better get out of the house. After receiving Jennifer's fearful call, Jensen called her husband and they both went directly to Jennifer's apartment. Jensen was afraid just walking to and from the apartment, but she entered and took the children. Jensen's husband took Jennifer, who was visibly upset, and they all met at Jensen's house. There, Jennifer told them that she believed defendant had access to weapons and might be able to carry out his threat. Jennifer called the police. She and the children stayed with Jensen and her husband for a couple of days.
Jensen testified that, at the time of the call, Jennifer had been trying for many months to convey to defendant that they were just friends and nothing more, but he had difficulty accepting it and was upset that Jennifer was having a relationship with another man. Nevertheless, it was important to Jennifer that defendant be in the boy's life to some extent. Jensen was aware that defendant would come to Jennifer's apartment to see the boy. Defendant was a jealous person and he would get angry when Jennifer did not comply with what he wanted. When he behaved that way, Jensen thought it was unhealthy for Jennifer to stay with defendant. Since Jennifer's death, Jensen and her husband had taken custody of Jennifer's two children and planned to adopt them.
The district attorney's investigator, who was a firearm specialist, testified that the .38-caliber revolver required 12 to 13 pounds of force for double-action firing (cocking and firing with one pull of the trigger) and three pounds for single-action firing (separately cocking and firing). In a combat situation, the shooter would fire in double-action mode to avoid having to manually cock the hammer. The investigator had never seen someone accidentally fire a revolver four times.
Jennifer sent defendant two text messages, which the police recovered from defendant's cell phone. On November 27, 2011, at 10:48 p.m., Jennifer sent: "Chepe Iam sleeping please go to sleep me and u is talking tomorrow goodnight[.]" And on November 28, 2007, at 10:25 a.m., she sent: "When u is no more go with these friends okay u is no change nothing never chepe[.]"
In Jennifer's bedroom, a photograph of defendant holding the boy and a photograph of Jennifer holding the boy were displayed on the mirror.
Dr. Melissa Piasecki, an expert on the effects of methamphetamine, testified that defendant's behavior on the day of the shooting was consistent with being under the influence of methamphetamine and with heavy use of methamphetamine in the recent past. She believed defendant's behavior that day suggested he might have been using methamphetamine.
Defendant told Dr. Piasecki he started using cocaine around age 13. In his 20's, he began using methamphetamine and continued using it daily or almost daily. Dr. Piasecki explained that methamphetamine kills brain cells and leads to brain damage, especially in children. Dr. Piasecki believed that the exposure of defendant's developing brain to cocaine led to some abnormal brain development, particularly in the frontal lobe, which is responsible for executive functions, including understanding the emotional content of events. Such an abnormality can lead to aggression based on perceived threats. In addition, rage and impulsive anger often are seen in methamphetamine users because methamphetamine lowers the rage threshold and intensifies the rage response.
Defendant told Dr. Piasecki he had not slept for two or three days before the shooting. He had been drinking coffee, but had not eaten much. Dr. Piasecki opined that sleep deprivation tends to affect frontal lobe functioning.
After reviewing the facts of this case and interviewing defendant, Dr. Piasecki believed that defendant had received mixed messages from Jennifer about their relationship. Jennifer sent him messages that they were going to get back together, and then she told him she had a sexual relationship with another man. He would have been preoccupied by the prospect of having this relationship and then his expectations would have heightened his disappointment when she rejected him. Dr. Piasecki believed that defendant went to the apartment with the intent to reconcile with Jennifer. His physical aggressiveness toward Jennifer suggested an abrupt or sudden change in his behavior. Defendant told Dr. Piasecki that he did not remember what he was thinking, which suggested his behavior was impulsive. It appeared to Dr. Piasecki that defendant did not know he had killed Jennifer when he left her apartment.
According to Dr. Piasecki, if a long-term user of methamphetamine had used methamphetamine within the past 24 hours and was rejected by his lover, the combination "would in some ways be sort of a perfect storm for an angry, impulsive act." Someone in that situation might be particularly vulnerable to responding in an impulsive and intense manner. In Dr. Piasecki's opinion, defendant responded with impulsive anger when he learned that Jennifer had a sexual relationship with another boyfriend. Defendant's frontal lobe was not functioning correctly.
Although defendant did not appear to Dr. Piasecki to be "tweaking" during his police interview, the interview occurred about seven and one-half hours after the shooting and any obvious effects of methamphetamine would have faded significantly.
Defendant told Dr. Piasecki he wrote the typewritten letter as part of a treatment program.
Dr. Piasecki received an email from defense counsel with additional information gleaned from a recent interview of defendant. In the interview, defendant stated that he became angry when Jennifer told him she had another man. Defendant said this was the first he knew about it and he had never suspected. Defendant also explained that a feeling that he had never experienced, like a chill or a fear, came over his whole body. This description suggested to Dr. Piasecki that defendant experienced an intense emotional response to learning about the other man. Defendant also explained that when the gun went off, he "awoke with a sort of nightmare that it went off again.... [I]t was as though being awakened from something like a bad dream.... [A]fter two or three shots she ... came up to me, hugged me. But this was not affection.... Now, I couldn't see her face, so I couldn't tell." This description suggested to Dr. Piasecki that defendant had difficulties either feeling fully present at the time of the shooting or remembering exactly what happened later.
On cross-examination, Dr. Piasecki acknowledged that defendant "absolutely, steadfastly denie[d] having used any methamphetamine from the time he left treatment ... in 2006 ... up until and through the time of the murder." Defendant had denied it again to both defense counsel and Dr. Piasecki via email just a few weeks before trial. Dr. Piasecki, however, thought it was likely that defendant was using methamphetamine. Although she agreed that the typewritten letter suggested he was satisfied to be working on his sobriety for Jennifer and the boy, Dr. Piasecki still did not believe he was not using methamphetamine. She did not know, however, why defendant would deny using methamphetamine but admit killing Jennifer.
Dr. Piasecki was aware that the relationship between defendant and Jennifer had been going badly for some time and that defendant had allegedly threatened to kill Jennifer three months before the shooting. When the prosecutor asked Dr. Piasecki why she concluded that defendant suddenly snapped on the day of the shooting when it appeared that he had known about the new boyfriend for some time, Dr. Piasecki answered that, because of Jennifer's communications, defendant truly thought he was going to her apartment to reconcile.
Dr. Piasecki explained that she did not diagnose defendant with a specific mental disease. Dr. Piasecki explained that her objective in this case was to determine the role played by methamphetamine.
Dr. Piasecki was aware that Jennifer had been shot in the back and the back of the head. Dr. Piasecki believed that defendant's explanation that Jennifer came up to hug him made sense if defendant had his arms around her or reached behind her and shot her from behind. Dr. Piasecki noted she was not a ballistics expert.
Dr. Richard Blak, a clinical forensic psychologist, was retained by the defense to evaluate defendant. Dr. Blak wrote his report on July 28, 2008. He testified that at the interview, defendant acknowledged he was currently depressed and had been suicidal when he was contacted by law enforcement after the shooting and when he was in jail. Dr. Blak utilized the Millon Multi-Axial Clinical Inventory Test to evaluate defendant for mental disorders. Dr. Blak concluded that defendant had been depressed since he was a child, avoided close relationships with others, and suffered from schizoaffective disorder, which included both mental confusion and mood disregulation. Dr. Blak characterized defendant's schizoaffective disorder as a severe mental disorder.
According to Dr. Blak, people often use methamphetamine to self-medicate their depression. Methamphetamine might lead the user to engage in risky behavior because he cannot understand the consequences of his acts and his judgment is affected. Dr. Blak explained that ongoing use of methamphetamine acts as a disinhibitor, allowing the user to act without modulation, thereby increasing the risk of aggression, threat, and assault. The longer the use, the greater the risk of damage to the brain. Defendant told Dr. Blak he began using methamphetamine when he was in the army and continued to use it more heavily afterward.
Defendant acknowledged to Dr. Blak that he shot the gun. He did not specifically say that he remembered shooting it, but he was aware that the gun had gone off and he felt significant remorse for the possible injury to Jennifer. At the time of the shooting, defendant was not sure that Jennifer was dead. When Dr. Blak asked defendant how the events unfolded, defendant said, "Your mind goes blank. I was mad." He said he could not remember specifically how it happened.
Dr. Blak explained that people who are overwhelmed with emotion and in a disassociated state sometimes are not aware of what they are doing. A major trauma can cause a person's mental faculties to be overwhelmed and the person cannot, or does not want to, comprehend what he is facing or doing. This state could also be connected to the use of methamphetamine.
Feelings of abandonment and isolation can lead to sadness and anger. Intense feelings can cause rage and the urge to destroy the world. At this point, the person loses the appreciation for right and wrong. In defendant's case, his feelings of rejection and abandonment began when his mother left him and his sister with their grandparents. His mother later retrieved his sister, but left him with his grandparents. Defendant experienced sadness, anger, and rejection. He felt he was the object of ridicule and believed he was devalued by others.
Dr. Blak believed defendant suffered from a violent attachment disorder, which he explained in more detail in the following hypothetical. A person's anger turns to rage, which overwhelms the person's rational thinking so that his affective aspect takes over and negates his capacity to understand what he is doing. The person cannot stop the assaultive or aggressive nature. This is catathymia, a form of violent attachment disorder. When a person is in the grip of catathymia and his aggressiveness has overcome his ability to think rationally, the rage is encompassing and the whole world becomes his enemy. The person believes he must destroy the thing that has rejected him. He must take his anger out and direct it at the thing that is mistreating him. He regresses back to his childhood where he was rejected by his mother and could not fend for himself. Furthermore, if the person had been in jail for a few weeks due to a criminal complaint made by the mother of his child, and while he is in jail that woman sends him love letters and photographs and talks about their future together, and when he is released from jail he spends time with her, but then she tells him without warning that she no longer wants him, his disorder would take him back to his relationship with his mother, wanting to be loved but being rejected and abandoned. Plus, he would be confused by the mixed messages of love and rejection. If the woman tells him she has been sexually involved with another man—the tantamount insult for many men—tension would arise and cause him to feel even more anger, sadness, and rage.
Specifically, the clinical course of catathymia begins with the feeling of facing an unsolvable dilemma. For example, the person wants a loving relationship, but the woman tells him she is not interested. Tension builds and he cannot rationally resolve it because his executive functions are impaired. Instead of assuming responsibility for his feelings, he projects them onto the woman, believing she is responsible. His thinking becomes very egocentric and he cannot empathize with any view other than his own. His thinking is clouded. He wants to harm the person he believes is causing him pain. His only goal is to relieve the tension and he sees violence as a way of doing so. These events can unfold quickly because he is predisposed to operate this way. After he commits a violent act, he realizes harm has come to his victim. He feels a sense of responsibility and he is aware something bad has happened, but he is not sure exactly how it happened. He feels loss and remorse, and believes the only escape is to take his own life.
Dr. Blak believed that everything defendant had done was consistent with the clinical course of violent attachment disorder, which was aggravated by long-term methamphetamine use.
Dr. Blak originally had not been asked to render an opinion on defendant's sanity. At trial, however, he concluded defendant was "overwhelmed with a psychological sickness" that caused a loss in his executive function, to the point that he could not control his behavior or understand how to resolve his dilemma. His motives were confused and he suffered a loss of moral restraint. He had "a partial understanding of what he was doing in a sense that if he knew [he] had a gun in his hand, and he knew the gun went off, he might, then, assume something bad happened and somebody might have been hurt." But he would not understand his intent. "He would not understand that his rage would take over and he wouldn't understand exactly what he was doing. [¶] ... [¶] ... He would not be able to distinguish right from wrong." Dr. Blak concluded that defendant's violent attachment disorder and his current or long-term use of methamphetamine caused him to be legally insane at the time of the shooting.
Dr. Blak explained that it was difficult to know how much of defendant's story was true. When a person is overwhelmed with emotion, he does not register the information properly. If he tries to recall it, the information is not accessible.
On cross-examination, Dr. Blak explained that his report did not mention defendant's insanity because he was not asked to consider it at that time. Dr. Blak agreed his conclusion that defendant was insane was based on catathymia. A person suffering from catathymia would have an impulse to kill that he could not overcome. Dr. Blak conceded that catathymia was not a diagnosis in the DSM-IV diagnostic manual.
In Dr. Blak's opinion, defendant had not demonstrated hallucinations, but he had demonstrated delusions in the sense that his belief that he had been mistreated was distorted and his typewritten letter contained many questionable statements. Dr. Blak conceded, however, that defendant's feelings and statements might have been true, rather than delusional. Dr. Blak agreed that if defendant wrote the typewritten letter as a part of his 12-step recovery, it would have been important for him to be honest in the letter.
Dr. Blak found no evidence that defendant was under the influence of methamphetamine when he killed Jennifer. Dr. Blak was aware that defendant steadfastly denied, as recently as a few weeks before trial, that he used methamphetamine at any time relevant to this case, but Dr. Blak suspected defendant's claim was not true because his story was inconsistent and unbelievable. Dr. Blak admitted, however, that defendant might simply have been lying, a rational response to having committed murder.
Dr. Blak explained that he reached the diagnosis of schizoaffective disorder based on defendant's childhood experiences and his responses to the Millon test.
When the prosecutor asked Dr. Blak whether an irresistible impulse to kill was the cause of defendant's insanity, defense counsel objected and the question was never answered. After a discussion in chambers, the prosecutor turned to the topic of whether defendant's actions were goal-oriented. Dr. Blak admitted that defendant's conduct on the day of the shooting could have been goal-oriented conduct. Dr. Blak disagreed that defendant sought out Jennifer to kill her, but agreed that "[h]e just couldn't help himself on that day."
In December 2008, Dr. Philip Trompetter, a clinical psychologist specializing in police and forensic psychology, was appointed by the court to evaluate whether defendant met the legal criteria for insanity at the time of the shooting. Dr. Trompetter reviewed documents and, on December 29, 2008, interviewed defendant. He was taking an antidepressant and an antianxiety medication, neither of which were drugs typically used to treat schizoaffective disorder. Defendant's mood was depressed and his affect was dull and restricted. He did not smile and he was sometimes tearful. But his thinking processes seemed clear and without any abnormality whatsoever. He showed no signs of delusions or hallucinations. He denied ever experiencing auditory or visual hallucinations.
Defendant told Dr. Trompetter that he had trouble sleeping the night before the shooting because he had received a disturbing text message and photograph from Jennifer. He got up at about 6:00 a.m., made a cup of coffee, and left. (Dr. Trompetter noted that defendant's roommate said defendant left at about 4:00 a.m.) Defendant told Dr. Trompetter how he came into possession of the gun, a story about which Dr. Trompetter was skeptical. Defendant said he then drove to Jennifer's apartment. He tried to hide his car because he knew she would be upset that he was driving without a license. He knocked at Jennifer's door, but no one was home. He thought Jennifer had taken her daughter to school or to the bus, so he waited. When she returned, he approached her and asked if he could come in. When they went inside, he attempted to touch Jennifer's hand, but she rebuffed his overture. She told him she was with another man, had slept with him, and was not interested in being touched by defendant. At that point, defendant took the boy outside and ran across Olive Avenue to his car. He retrieved the gun and returned to Jennifer's apartment, leaving the boy outside. He drew the gun as he reentered the apartment. He pulled the hammer back and fired a shot that went into the floor. At that point, Jennifer hugged him and he fired several more shots. Defendant explained to Dr. Trompetter that he pulled the hammer back before each shot (i.e., did not use the gun's double-action feature). When Jennifer fell from his arms, he got scared and ran. He did not see the impact of his bullets, but he believed his shots had injured her when she fell to the ground. He thought he had done something wrong. He told Dr. Trompetter that he felt a strange feeling all over his body at the time of the shooting.
Defendant explained to Dr. Trompetter that when he was at the canal after the shooting, he was depressed, felt bad about what had happened, and was very worried he had hurt Jennifer. He told the deputies he was thinking about killing himself. Dr. Trompetter believed defendant was suicidal when he put the gun to his own head.
Based on Dr. Trompetter's review of documents and his interview of defendant, he concluded it was very clear that at the time of the shooting defendant knew he had a gun, appreciated and understood the nature and quality of the act of shooting the gun, knew he fired it, and knew he may have hurt Jennifer seriously. He understood he had a deadly weapon that possibly hurt or killed someone. Further, defendant was aware of both the legal and moral wrongfulness of his actions. He fled the apartment, never called 911, and admitted he was aware he had done something wrong. His depression, guilt, and suicidality also indicated he was aware he had done something wrong. He said he was not surprised he had been arrested for anything related to Jennifer's death. In Dr. Trompetter's opinion, truly mentally disordered people with a meritorious insanity claim are frequently surprised by their arrest because they do not understand they have done something wrong. Defendant, on the other hand, knew he had done something wrong.
On cross-examination, Dr. Trompetter said he diagnosed defendant as having major depressive disorder, which is not a mental disorder. He also diagnosed defendant with methamphetamine dependence in sustained full remission. Defendant told Dr. Trompetter he quit using methamphetamine in October 2006. He denied being under the influence of methamphetamine or alcohol at the time of the shooting, and there was no evidence he displayed any objective signs of being under the influence while in the presence of law enforcement. Dr. Trompetter acknowledged that the September 2007 witness report that defendant was delusional and using methamphetamine was not consistent with defendant's statements.
Dr. Trompetter had not heard any other information since his interview of defendant to change his conclusion that defendant was legally sane at the time of the shooting. Dr. Trompetter disagreed with Dr. Blak's opinion that defendant suffered from schizoaffective disorder. Dr. Trompetter believed it was clear that defendant had no history of a mental disorder.
Dr. Andrew Neufeld, a clinical psychologist, was also appointed by the court to evaluate defendant's sanity at the time of the shooting. Dr. Neufeld reviewed documents and interviewed defendant on December 24, 2008. At the interview, defendant seemed dejected and depressed, but he was oriented and understood where he was and what was happening. He initially responded to Dr. Neufeld's questions by saying he did not know anything, remember anything, or understand anything Dr. Neufeld was saying to him. Dr. Neufeld had seen this naïve attempt to feign insanity when he had conducted other insanity evaluations.
Eventually, however, defendant began to discuss the circumstances of the shooting and was able to describe the surrounding events in detail. He said he went to Jennifer's apartment and waited for her to drop off her daughter at the bus stop. When she returned, he jumped the fence and spoke to her. They went inside and started arguing. Defendant became distraught, so he took the boy outside and went to his car. He retrieved a gun, jumped back over the fence, entered the apartment, and shot the gun three or four times. One bullet hit the floor and he did not know where the other bullets went. He did not mention having any delusions or hallucinations during the events.
Dr. Neufeld believed defendant's crossing the six-lane street to retrieve the gun from his car was goal-oriented conduct. Similarly, he believed defendant's removing the boy from the apartment, returning with the gun, and manually cocking the hammer each time he fired the gun was goal-oriented conduct. Defendant's choice of a .38-caliber revolver as a murder weapon also constituted goal-oriented conduct.
Dr. Neufeld believed defendant felt remorse for what he had done because he told Dr. Neufeld he threatened suicide after the shooting. Defendant's inquiry about Jennifer's condition indicated that he knew he had shot her.
Dr. Neufeld believed defendant intended to kill Jennifer and understood that by shooting her he could kill her. Defendant told law enforcement his intention was to kill her. Dr. Neufeld believed defendant knew shooting her was wrong because he expressed concern for her condition and was thereafter dejected and remorseful. Dr. Neufeld believed defendant was capable of understanding the gravity of what he had done. Dr. Neufeld concluded defendant was sane at the time of the shooting.
On cross-examination, Dr. Neufeld agreed that it is possible for an insane person to be goal oriented and to do things, such as retrieving a gun, as a result of insanity. Dr. Neufeld explained that defendant's possible use of drugs before the shooting would not have affected his opinion that defendant understood what he was doing and appreciated the quality and nature of his acts. If defendant could take drugs and still have a clear understanding of what he was doing, then he was still sane. Defendant's reasoning about the events was clear and, even if he had used drugs, he was still able to think clearly. If he was intoxicated, he was intoxicated and sane.
Defendant contends the trial court erred in admitting the typewritten letter found in his apartment. Defendant recognizes that a party's statement falls within an exception to the hearsay rule, but he asserts that the typewritten letter was nevertheless irrelevant for impeachment, the purpose for which the court restricted its admission. Finally, he argues that, even if relevant, the typewritten letter constituted inadmissible character evidence. The People respond that the statements in the typewritten letter were inconsistent with defendant's statements to police and therefore were relevant to his credibility. We see no abuse of discretion in the admission of the evidence.
The typewritten letter was written in Spanish and the parties agreed to its translation. The trial court found the letter relevant to the credibility of defendant as a hearsay declarant. The court explained that cross-examination of Detective Court had created the inference that defendant and Jennifer were in love, intended to marry, and continued in a relationship despite the protective order. Furthermore, evidence had suggested that the killing was accidental. Defendant's credibility was at the essence of the case.
Before the typewritten letter's contents were discussed at trial, the trial court instructed the jury:
Then Detective Court read the following portions of the letter, as requested by the prosecutor:
On cross-examination, Detective Court read another excerpt, which immediately followed the excerpt in which defendant talked about searching for Jennifer on the streets with a gun, as follows: "Thank God I didn't find her because during her free time from the program, she would go out to look for me because she wanted to know about me and tell—and to tell me that she loved me." Detective Court explained that the typewritten letter began with defendant as a 15-year-old and described his life in general over the course of several years. It addressed his battles with addiction, the love he and Jennifer shared, their recoveries, and his desire to stop using drugs.
The translated letter was admitted in full and submitted to the jurors. In addition to the excerpts read by Detective Court, the letter also stated that defendant was happy when he was a soldier of an infantry battalion in Mexico. He had weapons and he felt strong, protected, happy, and superior to the people who had hurt him. It was "the greatest thing" that people were afraid of him; he felt like he was the best. After five years, he left the army because he needed more money due to his drug use. He moved to California and eventually sold marijuana and methamphetamine. He got together with Jennifer and they lived together. He started going out to do drugs and steal things, which he enjoyed. He would get home after midnight, looking for a fight with Jennifer. He "would ask her where she had gone [and] she would say nowhere and [he] would say she was lying and [he] would hit her even though she was pregnant with [his] child[.]" He said, "That's how I started hitting her for no reason every time I would arrive drugged-up and that was every day because I was using daily." He said he lost his apartment and they had to live in a homeless dump. Jennifer, who was still pregnant, got tired of it and left to live with some relatives. She enrolled in a program. She did not want defendant around because he was using drugs and she was trying to regain custody of her daughter.
All relevant evidence is admissible, except as provided by statute. (Evid. Code, § 351.) Relevant evidence is all evidence "including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Id., § 210.) In determining whether evidence has a tendency to prove a material fact, it must be determined whether it "`"logically, naturally, and by reasonable inference"'" establishes that fact. (People v. Thompson (1980) 27 Cal.3d 303, 316, overruled on other grounds in People v. Rowland (1992) 4 Cal.4th 238, 260.) Trial courts have broad discretion concerning the admission of evidence. (People v. Anderson (2001) 25 Cal.4th 543, 591.)
The typewritten letter was clearly relevant to defendant's credibility as a hearsay declarant. In his police interview, defendant explained that he and Jennifer had never had problems, so he did not know why she started cutting him off in mid-November. He portrayed their relationship as loving—they intended to get married and he bought the rings—and her rejection of him as unexpected and shocking. Defense counsel had also introduced evidence of letters presumably written by Jennifer to defendant while he was in jail, in which she mentioned getting married and told defendant he was a good father to the boy. The typewritten letter, however, established that defendant was violent toward Jennifer regularly when she was pregnant with the boy. Defendant had drug and criminal problems. They became homeless and she left him to find a better living arrangement and to free herself from the life of drugs they were sharing. The letter also called into question defendant's story of innocently and unexpectedly receiving a gun as a gift from a stranger. The letter demonstrated defendant's love of weapons and the feeling of power they gave him. These inconsistent statements were relevant to defendant's credibility. (People v. Houston (2005) 130 Cal.App.4th 279, 305.)
Defendant also argues the typewritten letter was inadmissible as bad character evidence (Evid. Code, § 1101). As we have explained, the evidence was admitted on, and relevant to, the issue of credibility. The jurors were instructed to consider it only for that limited purpose, and we presume they understood and followed the instruction. (People v. Holt (1997) 15 Cal.4th 619, 662.)
Lastly, defendant asserts that the typewritten letter was unduly prejudicial under Evidence Code section 352, which accords the trial court broad discretion to exclude even relevant evidence "if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." But this evidence was highly probative of defendant's credibility and did not unduly prejudice him. The type of prejudice that Evidence Code section 352 was meant to avoid is not prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. "`[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial."'" (People v. Karis (1988) 46 Cal.3d 612, 638.) Rather, evidence should be excluded as unduly prejudicial when it uniquely tends to evoke an emotional bias against the defendant as an individual and has very little effect on the issues. (People v. Coddington (2000) 23 Cal.4th 529, 588 (Coddington), overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Branch (2001) 91 Cal.App.4th 274, 286.) "`"[T]he statute uses the word in its etymological sense of `prejudging' a person or cause on the basis of extraneous factors."' [Citation.] Painting a person faithfully is not, of itself, unfair." (People v. Harris (1998) 60 Cal.App.4th 727, 737.)
Defendant asserts that it was improper for the prosecutor to ask Detective Court whether he believed everything defendant told him in the interviews, and that Detective Court's opinion of defendant's veracity was irrelevant. Defendant claims this evidence, in conjunction with the prosecutor's related argumentative questions, contributed to overall bad character evidence and jury confusion. We disagree.
"[C]ourts should carefully scrutinize [were-they-lying] questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions." (People v. Chatman (2006) 38 Cal.4th 344, 384.) Questions that legitimately assist the jurors in determining credibility are proper. (Id. at pp. 380, 383.)
Experienced police officers may give opinions based on their knowledge, training, and experience. (See, e.g., People v. Carter (1997) 55 Cal.App.4th 1376, 1378 ["`In cases involving possession of marijuana or heroin, experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual'"]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 [foundation for an officer's opinion may be based on officer's experience with "street gangs in general"]; People v. Williams (1997) 16 Cal.4th 153, 195 [law enforcement officers found qualified to provide expert testimony regarding gangs simply based on their investigative experience]; People v. Ochoa (2001) 26 Cal.4th 398, 438 [same], abrogated on other grounds as stated in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)
In this case, Detective Court had been a police officer for over 21 years, was investigating major crimes when he was involved with this case, and had since been promoted to sergeant. He had previously been a member of the gang violence suppression unit. This experience qualified him to testify that guns are very valuable on the street, especially to criminals, and he would not expect a person to give away a loaded, operable . 38-caliber revolver to someone he had just met. This knowledge and defendant's possession of a matching holster and ammunition in his home led Detective Court to disbelieve defendant's story about how he obtained the gun. Similarly, Detective Court's experience qualified him to testify that he had never seen wounds to the back or the back of the head resulting from a gun struggle. Based on this knowledge, he did not believe defendant's story that he and Jennifer struggled for the gun.
Detective Court's opinions were based on his expertise and his knowledge of the inherent unlikelihood of defendant's statements, which were relevant to his credibility. This evidence tended to assist the jury in assessing defendant's credibility and did not call for irrelevant or speculative testimony. Detective Court's testimony regarding what, based on his expertise, was likely or unlikely in these situations was properly admitted as a basis for the jurors to judge defendant's credibility. (See People v. Chatman, supra, 38 Cal.4th at pp. 380, 383.)
And even if the trial court erred by allowing Detective Court's statements about his personal disbelief of defendant's story, the error was harmless. It is not conceivable that the jurors' assessment of defendant's credibility would have been any different had Detective Court not been permitted to state his opinions regarding defendant's believability. The jurors could judge defendant's credibility based on Detective Court's other testimony and they presumably were able to arrive at their own conclusions as to whether defendant's explanations were believable. Thus, it is not reasonably probable the admission of those statements affected the outcome. (See People v. Melton (1988) 44 Cal.3d 713, 745 [applying People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)].)
Defendant argues the trial court erred in admitting Jensen's testimony that, in September 2007, Jennifer called and told her defendant had threatened her. Defendant maintains the court mistakenly concluded the hearsay statement qualified as a spontaneous declaration/excited utterance. He asserts that there was no evidence of how much time passed between the threat and Jennifer's call to Jensen. Furthermore, Jennifer did not say the threat had just occurred and, rather than blurting out the statement, she took the specific action of making a telephone call. We conclude the court did not abuse its discretion.
"`Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Generally, hearsay evidence is inadmissible unless the law provides an exception for its admission. (Id., subd. (b).) Evidence Code section 1240 codifies the common law exception to the hearsay rule for spontaneous declarations. It provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
A spontaneous declaration is one made without deliberation or reflection. (People v. Raley (1992) 2 Cal.4th 870, 892.) "`[N]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.' [Citation.]" (Id. at p. 893.) Thus, "[t]he requirement is for a spontaneous declaration, not an instantaneous one." (People v. Riva (2003) 112 Cal.App.4th 981, 995; see, e.g., People v. Brown (2003) 31 Cal.4th 518, 541 [statement made two and one-half hours after event]; People v. Raley, supra, at pp. 893-894 [18 hours]; People v. Trimble (1992) 5 Cal.App.4th 1225, 1235 [two days].) The "`crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is ... the mental state of the speaker. The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant.'" (People v. Raley, supra, at pp. 892-893.)
Whether a statement satisfies the requirements of the spontaneous declaration exception is generally a question of fact for the trial court. (People v. Poggi (1988) 45 Cal.3d 306, 318.) We apply the abuse of discretion standard in reviewing the trial court's ruling on the admissibility of a hearsay statement. (People v. Waidla (2000) 22 Cal.4th 690, 725.) That standard also applies to questions about the existence of the foundational facts necessary to satisfy a hearsay exception, such as the Evidence Code section 1240 exception. (People v. Brown, supra, 31 Cal.4th at p. 541.)
In this case, there was ample evidence that Jennifer was under the stress and anxiety of defendant's threats when she made the statements to Jensen, and that Jennifer made the statements without deliberation or reflection. Jennifer was crying, fearful, and almost hysterical. She did not know what to do because defendant had called her numerous times. He told her he did not want to be her friend and he was "going to go fucking crazy." He was going to kill her and everybody in the house. After she hung up on him, he called back and reinforced the threat by telling her he meant it and she had better get out of the house. Jensen and her husband recognized Jennifer's fear and they responded by immediately removing her and the children from the apartment and protecting them in their own home. It is of no matter that the evidence did not establish exactly how much time passed between the threats and the call. Jennifer's mental state demonstrated her statements were made under the stress of excitement while her reflective powers were still in abeyance. The trial court did not abuse its discretion when it determined the testimony constituted spontaneous statements.
Jennifer called the police after defendant threatened her in September 2007. A police report documented her description of defendant's threats to her, which Detective Court read at trial. Defendant contends this was double hearsay.
Assuming the testimony was inadmissible hearsay, we nevertheless conclude any error in its admission was harmless under any standard because the evidence was cumulative to properly admitted evidence of Jennifer's call to Jensen, as explained above. (Watson, supra, 46 Cal.2d at p. 836; Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
Defendant contends Jensen's testimony that she was afraid walking to and from Jennifer's apartment after defendant's threats was irrelevant. Defendant believes the evidence was a "gratuitous suggestion" to the jurors that defendant was a bad person who caused fear in others.
Again, we find any error to be harmless under any standard. (Watson, supra, 46 Cal.2d at p. 836; Chapman, supra, 386 U.S. at p. 24.) The evidence of defendant's death threats, Jennifer's fearful and nearly hysterical reaction, and defendant's ongoing jealousy and anger more than sufficiently established that any rational person would be afraid to be in the vicinity of Jennifer's home after defendant threatened to kill everyone in her apartment. Jensen's fear could not have been anything but obvious to the jurors.
Defendant contends CALCRIM No. 852 violated his due process rights because it informed the jurors that if they found defendant committed prior domestic violence, they could conclude he was likely to commit, and did commit, murder. He claims the instruction went too far when it stated that past domestic violence suggests a propensity for murder. We conclude the instruction was proper.
The jury was instructed with CALCRIM No. 852, as follows:
This instruction properly informed the jury it could logically infer that defendant committed murder based on the prior domestic violence evidence. Although evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts (Evid. Code, § 1101), the Legislature has created exceptions to this rule in cases involving sexual offenses (id., § 1108) and domestic violence (id., § 1109). Evidence Code section 1109 defines "[d]omestic violence" by reference to section 13700, subdivision (b) as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship."
Courts have found no due process violation in admission of evidence of prior domestic violence to show propensity to commit murder. (See, e.g., People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1097; People v. Johnson (2000) 77 Cal.App.4th 410, 416-417.) Similarly, CALCRIM No. 852 has withstood a due process challenge. In People v. Reyes (2008) 160 Cal.App.4th 246 (Reyes), the court explained: "Our Supreme Court has held that Evidence Code section 1108 [allowing prior sexual offenses] conforms with the requirements of due process. (People v. Falsetta (1999) 21 Cal.4th 903, 915.) It has also ruled that CALJIC No. 2.50.01, an instruction explaining the application of [Evidence Code] section 1108, is proper. (People v. Reliford (2003) 29 Cal.4th 1007, 1012.) The analysis in Falsetta has been used to uphold the constitutionality of Evidence Code section 1109 [citations] and the analysis in Reliford has been used to uphold the constitutionality of the corresponding CALJIC instruction, CALJIC No. 2.50.02 [citation]. In fact, this court has held `[f]or the purposes of evaluating the constitutional validity of the instructions, there is no material difference between CALJIC No. 2.50.01 and CALJIC No. 2.50.02. [Citation.]' [Citation.] [¶] Similarly, there is no material difference between the language found constitutional in CALJIC No. 2.50.02 and that in CALCRIM No. 852. In fact, CALCRIM No. 852 is expressed in clearer language and makes more certain the manner in which such evidence may or may not be used by the jury. The reasoning of the cases analyzing CALJIC No. 2.50.02 is equally applicable to the validity and propriety of CALCRIM No. 852.
"CALCRIM No. 852 makes clear the evidence of uncharged acts of domestic violence may only be considered at all if it has been established by a preponderance of the evidence and explains what is meant by that burden of proof. The instruction also explains that if that burden is not met, the evidence must be disregarded entirely. [¶] As with CALJIC No. 2.50.02, CALCRIM No. 852 explains that if the jury finds the defendant committed the uncharged acts, it may but is not required to conclude the defendant was disposed to or inclined to commit domestic violence and may also conclude that the defendant was likely to commit and did commit the crimes charged in the case. Also as with CALJIC No. 2.50.02, CALCRIM No. 852 clarifies that even if the jury concludes the defendant committed the uncharged acts, that evidence is only one factor to consider, along with all the other evidence and specifies that such evidence alone is insufficient to prove the defendant's guilt on the charged offenses. CALCRIM No. 852 then goes on to state that the People must still prove each element of every charge beyond a reasonable doubt. In this, CALCRIM No. 852 goes further than CALJIC No. 2.50.02 with a clarification which inures to the defendant's benefit." (Reyes, supra, 160 Cal.App.4th at pp. 251-252, fns. omitted.)
The murder charged in this case was the ultimate form of domestic violence, and the prior domestic violence evidence against defendant was admissible to the murder charge. The language of the instruction ensured that no reasonable jury would have understood the instruction to mean they could convict defendant of murder based solely on propensity evidence. The trial court did not err by instructing the jury with CALCRIM No. 852.
"Under California law, if a defendant pleads not guilty and joins it with a plea of not guilty by reason of insanity, the issues of guilt and sanity are tried separately. [S]ection 1026, subdivision (a), provides that in such circumstances, `the defendant shall first be tried as if only such other plea or pleas had been entered, and in that trial the defendant shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed.'" (People v. Hernandez (2000) 22 Cal.4th 512, 520 (Hernandez).) "In the first phase of trial, the defendant is tried on his or her factual guilt without reference to the insanity plea." (People v. Dobson (2008) 161 Cal.App.4th 1422, 1431.)
"`If the jury shall find the defendant guilty, or if the defendant pleads only not guilty by reason of insanity, then the question whether the defendant was sane or insane at the time the offense was committed shall be promptly tried, either before the same jury or before a new jury in the discretion of the court. In that trial, the jury shall return a verdict either that the defendant was sane at the time the offense was committed or was insane at the time the offense was committed.'
"Although guilt and sanity are separate issues, the evidence as to each may be overlapping. Thus, at the guilt phase, a defendant may present evidence to show that he or she lacked the mental state required to commit the charged crime. [Citation; Pen. Code, §§ 21, 28, 29.) A finding of such mental state does not foreclose a finding of insanity. Insanity, under California law, means that at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong. (Pen. Code, § 25, subd. (b); [citation].) [¶] The plea of insanity is thus necessarily one of `confession and avoidance.' [Citation.] `Commission of the overt act is conceded' but punishment is avoided `upon the sole ground that at the time the overt act was committed the defendant was [insane].' [Citation.]
"The `sanity trial is but a part of the same criminal proceeding as the guilt phase' [citation] but differs procedurally from the guilt phase of trial `in that the issue is confined to sanity and the burden is upon the defendant to prove by a preponderance of the evidence that he was insane at the time of the offense' [citation]. As in the determination of guilt, the verdict of the jury must be unanimous. [Citation.]" (Hernandez, supra, 22 Cal.4th at pp. 520-521.)
Defendant maintains that the trial court abused its discretion when it denied his motion for a mistrial on the ground that defense expert Dr. Piasecki testified under cross-examination in the guilt phase that she had concluded there was no evidence defendant was legally insane when he committed the crimes. Defendant further argues the court erroneously denied his motion to impanel a new jury for the sanity phase. The People respond that the trial court's admonition to the jury dispelled the prejudice caused by the testimony. We find no abuse of discretion.
The defense case began with defense counsel's opening statement. Counsel stated that the evidence showed defendant did not intend to kill Jennifer and the killing was no more than manslaughter. The killing was not a deliberate, planned, or intentional killing. The shot that killed Jennifer may have been fired accidentally during a struggle for the gun. Defendant and Jennifer were in a troubled relationship, but they had a child together and were planning to marry. Jennifer sent defendant love letters and she kept his photograph on her bedroom mirror. The only mention counsel made of defendant's mental status was this: "You'll also hear evidence about methamphetamine and it's [sic] affect [sic] on the brain." Counsel concluded with the following: "At the end of this inquiry, we will ask you to find that Jennifer's death was not the result of cold-blooded premeditat[ed] planning. Instead, she died either accidentally as [a] result of [a] struggle for the gun or she was killed in the heat of passion after [defendant] found out that she was sleeping with another man."
The defense then presented its only witness, Dr. Piasecki, an expert on the effects of methamphetamine. During cross-examination, the prosecutor asked Dr. Piasecki to read a highlighted portion of an email she had written to defense counsel, and the following ensued:
Outside the presence of the jury, defense counsel moved for a mistrial. The prosecutor professed inadvertence. Defense counsel argued that the defense had obviously emphasized and focused on a psychiatric defense and thus the testimony was incurably prejudicial—like dropping a grenade in the middle of a room. The court responded that the defense's opening statement heavily emphasized that the case was no more than manslaughter and Jennifer died either accidentally or in the heat of passion; if anything, the focus was on attacking the element of specific intent. Defense counsel again insisted that the defense had emphasized "the psychiatric element of the defense," "a defense of the mental element of the defendant ...." Counsel continued: "[We have] called an expert in, so far the only witness. [¶] ... [¶] And it is our position that we have emphasized a psychiatric defense in the case. And I don't—I guess others may have a different opinion having heard different parts of the case, but that's definitely been our emphasis."
The court concluded the prejudice from the statement was not incurable or irreparable, and its efforts to deal with the statement had been sufficient. Accordingly, the court denied the motion for a mistrial.
Before the sanity phase began, defense counsel moved for a new jury to decide the issue of sanity. The court noted that it had struck Dr. Piasecki's testimony and admonished the jury to disregard it, and that similar information would nevertheless come up in the sanity phase. The court denied this motion as well.
"A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged ...." (People v. Bolden (2002) 29 Cal.4th 515, 555.) "`Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.'" (People v. Jenkins (2000) 22 Cal.4th 900, 986.)
We agree with the trial court that although the evidence regarding defendant's sanity was improper in the guilt phase of the trial, its admission did not irreparably damage defendant's chance of receiving a fair trial. Defendant's sanity was not an issue in the guilt phase and was irrelevant to the defense theories of heat of passion and the effects of methamphetamine on intent. After the improper testimony, the trial court immediately admonished the jury to disregard it, and we presume the jurors followed the instruction. (See, e.g., People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Under these circumstances, the court did not abuse its discretion in denying the motion for a mistrial.
A motion for a new jury to hear the sanity phase is also subject to the trial court's discretion. (§ 1026; People v. Rupp (1953) 41 Cal.2d 371, 383.) We see no abuse of discretion in the trial court's denial of defendant's motion. The effect of Dr. Piasecki's statement was insignificant in light of the evidence that would be presented in the sanity phase.
Defendant challenges the trial court's instruction to the jury in the sanity phase to disregard portions of Dr. Blak's testimony, including evidence of irresistible impulse. Defendant argues, as he did at trial, that section 28 is expressly inapplicable to the sanity phase and thus the evidence was admissible pursuant to section 1026. The People counter that irresistible impulse does not constitute a defense of insanity and thus the trial court correctly excluded the evidence. We believe the trial court's exclusionary instruction was too broad, but we conclude any error was harmless.
As previously noted, "[i]nsanity, under California law, means that at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong. [Citations.]" (Hernandez, supra, 22 Cal.4th at pp. 520-521.) To prove insanity, the defendant must prove by a preponderance of the evidence that (1) when he committed the crime, he had a mental disease or defect, and (2) because of that disease or defect, he was at that time (a) incapable of knowing or understanding the nature and quality of his act or (b) incapable of knowing or understanding that his act was morally or legally wrong. (Ibid.; see also CALCRIM No. 3450.)
The defendant may not prove insanity by showing that he acted under an irresistible impulse.
Defendant argues, as he did at trial, that evidence of irresistible impulse is made admissible in the sanity phase by section 28, subdivision (c), which states that section 28 "shall not be applicable to an insanity hearing pursuant to Section 1026." Section 28 states that "[e]vidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state" (id., subd. (a)), and that irresistible impulse is not a defense in a criminal action (id., subd. (b)).
In People v. Kelly (1992) 1 Cal.4th 495, the Supreme Court explained: "Whatever the meaning of sections 28 and 29 (we express no opinion), they do not apply to the sanity trial. Section 28 expressly does not apply to `an insanity hearing' (§ 28, subd. (c)), and section 29 applies only to the `guilt phase of a criminal action.'"
Several years later, the Supreme Court explained in Coddington, where the trial court instructed with language similar to CALJIC No. 4.05,
From these authorities, we distill the following principles: (1) Irresistible impulse is not a basis for legal insanity—that is, irresistible impulse does not demonstrate that the defendant was unable to understand the nature and quality of an act or that he did not know the act was wrong; (2) psychological evidence should be considered in deciding whether the defendant's mental disease or defect rendered him unable to understand the nature and quality of his act or to know that his act was wrong, not whether he acted under an irresistible impulse and thus could not control his behavior; and (3) subdivision (c) of section 28 should not be read to authorize consideration of irresistible impulse evidence in the sanity phase.
In this case, the trial court determined that defendant's insanity claim was based on the theory that he acted under an irresistible impulse arising from violent attachment disorder and catathymia, which is an irresistible impulse to kill based on emotional tension that increases rage and anger and leads to a violent explosion. We agree that evidence of irresistible impulse was not relevant to defendant's insanity and therefore properly excluded. (Evid. Code, § 350.) However, the trial court instructed the jurors to "disregard Dr. Blak's testimony regarding violent attachment disorder and/or catathymia for any purpose" (italics added) and to "disregard Dr. Blak's opinion that defendant was insane at the time of the crimes due to violent attachment disorder and/or catathymia."
"Where a trial court's erroneous ruling is not a refusal to allow a defendant to present a defense, but only rejects certain evidence concerning the defense, the error is nonconstitutional and is analyzed for prejudice under Watson ...." (People v. Garcia (2008) 160 Cal.App.4th 124, 133; see also People v. Bradford (1997) 15 Cal.4th 1229, 1325.) But if the error prevents the presentation of an entire defense, the error may be constitutional and require application of the Chapman standard.
Even assuming the error here prevented defendant from presenting his entire defense, we nevertheless conclude the error was harmless in light of the overwhelming evidence of defendant's sanity. Not only did both prosecution experts conclude defendant was sane, the great bulk of Dr. Blak's testimony demonstrated this as well. According to Dr. Blak, defendant was unable to control his actions due to his consuming rage. The catathymia amplified his anger and rage, creating in him a desire to harm Jennifer and an irresistible urge to kill her. The love, rejection, and betrayal created an unsolvable dilemma and defendant's goal was to relieve this emotional tension by killing Jennifer. He knew he had a gun and he knew he was shooting her, even if his motives were confused and his thoughts illogical. The catathymia removed all brakes on his aggression and his overwhelming emotional state led to an explosive, violent act. He simply could not control himself. The evidence offered by Dr. Blak that defendant was angry, experienced rage, wanted to harm Jennifer, suffered a loss of moral restraint, could not control himself, and felt an irresistible impulse to kill her was evidence that defendant was sane at the time of the shooting. (See, e.g., People v. Lawley (2002) 27 Cal.4th 102, 170 ["the evidence tended strongly to show that defendant acted out of anger and vengefulness rather than an insane delusion"]; People v. Clark (1907) 151 Cal. 200, 207-208 [mere moral insensibility, passion, hatred, anger, etc., do not constitute an insanity defense].) Furthermore, there was overwhelming evidence that, after learning the deeply disappointing and painful information that Jennifer was rejecting him for a sexual relationship with another man, defendant engaged in purposeful behavior to kill her. He removed the boy from the apartment, led him to a parking lot, crossed a six-lane street to retrieve his gun from his car, and returned to kill Jennifer. He fired the gun three or four times, each time manually cocking the hammer rather than using the double-action feature. He likely returned the boy to the apartment before he left. He did not call the police, although he did regret shooting Jennifer and considered killing himself. The evidence from both phases of trial overwhelmingly demonstrated that defendant became enraged when Jennifer rejected him for someone else, that he wanted to harm her and intended to kill her, and that he purposefully carried out the steps to do so.
Accordingly, Dr. Blak's excluded testimony that catathymia rendered defendant incapable of understanding exactly what he was doing and of distinguishing right from wrong was overwhelmingly counterweighted by opposing evidence. We are confident beyond a reasonable doubt that had the jurors been allowed to consider this evidence, they still would not have found defendant insane at the time of the shooting. Any error in the exclusion of the evidence was therefore harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
In a supplemental letter brief to which the People do not respond, defendant argues that count 3, a conviction under section 12021, subdivision (c), should have been dismissed rather than stayed because he was also convicted under section 12021, subdivision (a) for the same firearm possession. He asserts that section 12021 expressly precludes a conviction under both subdivision (a) and subdivision (c) of that section, and when the facts support both subdivisions, subdivision (a) applies to the exclusion of subdivision (c).
Under section 12021, a felon is permanently prohibited from possessing a firearm, and a misdemeanant (who was convicted of an enumerated misdemeanor) is prohibited from possessing a firearm for 10 years. The relevant portions of section 12021 provide:
As subdivision (c)(1) states, the 10-year ban on possessing a firearm after a misdemeanor conviction may be lifted by the court under certain circumstances (§ 12021, subds. (c)(2) & (c)(3)), while the permanent ban on possessing a firearm after a felony conviction may not. "[Subdivision (c)(1)'s] language `[e]xcept as provided in subdivision (a) ...' has an evident and sensible purpose, to govern partial overlap, e.g., to ensure that in a case where a person convicted of a misdemeanor listed in subdivision (c) of section 12021 also stands convicted of a felony ..., the misdemeanor conviction does not result in the lifting of the prohibition that would otherwise apply under subdivision (a). This purpose to harmonize the application of the two subdivisions in situations of partial overlap fully accounts for the phrase." (California Correctional Peace Officers Assn. v. Department of Corrections (1999) 72 Cal.App.4th 1331, 1337-1338.) In our opinion, the unambiguous language, "Except as provided in subdivision (a)," means that subdivision (c) applies only when subdivision (a) does not. This assures that where a person is both a felon and a misdemeanant, he will be permanently prohibited from possessing a firearm.
Based on the plain language of the statute, we conclude defendant is correct that he cannot be convicted of both subdivisions (a) and (c) of section 12021 with regard to the same firearm possession. We will reverse the conviction on count 3.
The judgment of conviction on count 3 (§ 12021, subd. (c)(1)) is reversed. The judgment is affirmed in all other respects. The trial court is directed to produce an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
Wiseman, Acting P.J. and Levy, J., concurs.
"[(c)](3) Any person who is subject to the prohibition imposed by this subdivision because of a conviction of an offense prior to that offense being added to paragraph (1) may petition the court only once for relief from this prohibition.... Upon making each of the following findings, the court may reduce or eliminate the prohibition, impose conditions on reduction or elimination of the prohibition, or otherwise grant relief from the prohibition as the court deems appropriate: [¶] (A) Finds by a preponderance of the evidence that the petitioner is likely to use a firearm in a safe and lawful manner. [¶] (B) Finds that the petitioner is not within a prohibited class ... and the court is not presented with any credible evidence that the petitioner is a person described in Section 8100 or 8103 of the Welfare and Institutions Code. [¶] (C)(i) Finds that the petitioner does not have a previous conviction under this subdivision, no matter when the prior conviction occurred. [¶] (ii) In making its decision, the court may consider the interest of justice, any relevant evidence, and the totality of the circumstances. It is the intent of the Legislature that courts exercise broad discretion in fashioning appropriate relief under this paragraph in cases in which relief is warranted. However, nothing in this paragraph shall be construed to require courts to grant relief to any particular petitioner."
