Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF148649, Patrick F. Magers, Judge.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, and Heidi T. Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington, J.
I
All statutory references are to the Penal Code unless stated otherwise.
On the morning of February 19, 2009, defendant Ivan John Cepeda shot and killed his housemate and friend, Qaddafi Nick (Nick), a housemate and lifelong friend, while under the influence of methamphetamine.
A jury convicted defendant of first degree murder, including a firearm enhancement. (§§ 187, subd. (a); 1192.7, subd. (c)(8); and 12022.53, subd. (d).) Defendant admitted having one prison prior and one strike prior. (§§ 667.5, subds. (b), (c), (e)(1).) The court denied defendant’s Romero motion and sentenced defendant to a total prison term of 76 years to life.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, defendant argues the court erred by limiting defendant’s cross-examination of the prosecution’s expert toxicologist about the effects of methamphetamine use. Additionally, defendant contends he received ineffective assistance of counsel (IAC) involving the failure to request modification of CALCRIM Nos. 625 and 627 on voluntary intoxication and hallucination and the failure to request a limiting instruction concerning defendant’s criminal predisposition. We reject these contentions and affirm the judgment.
II
FACTUAL BACKGROUND
Because the parties are generally agreed about the factual circumstances of the murder, we recite the facts in an abbreviated form.
A. The Murder
In February 2009, defendant shared a house with his sister, Yolanda Darden (Yolanda), her husband, Cecil, and their teenage daughter, Gabriella. The household included two renters, Glen Mosley and Nick, the victim, both of whom were long-time family friends.
Yolanda told police defendant often used methamphetamine, causing him to behave strangely. He had acted strangely and aggressively in the weeks before the shooting.
Defendant usually drove Gabriella to school in the mornings. On the morning of February 19, 2009, he insisted on taking her earlier than usual. When he returned home, a city worker, Jimmie Brooks (Brooks), observed defendant pacing in agitation around the truck parked in the driveway. The worker watched defendant place a blue tarp in the truck bed.
Inside the house, Yolanda was sleeping and Cecil was in the bathroom. Defendant entered Yolanda’s bedroom and awakened her, asking her to go outside and warm up the truck. When she came back inside, defendant stood in the entryway, holding a bag in the shape of a long gun. She thought he had a crazy look on his face and she noticed a burning smell. She asked him what had happened and he ordered her to be quiet.
Cecil heard two loud sounds and defendant called for help. When Cecil emerged from the bathroom, he smelled fireworks and noticed the door frame to Nick’s bedroom was broken. Defendant was holding a bag with a rifle. Nick appeared to be sitting on the couch in the bedroom. When defendant tugged at Nick, his body and head hit the ground. Although Cecil was reluctant, defendant insisted that Cecil help him drag the body outside.
Outside, Brooks, the city worker, watched defendant and Cecil carry Nick and drop him on the driveway. Brooks thought Nick looked injured. When Brooks asked if he could help, defendant claimed Nick was drunk and had injured himself. While Brooks watched, defendant and Cecil placed Nick’s body in the truck and wrapped it in the blue tarp. Defendant instructed Cecil to clean up the crime scene. After defendant drove away, Brooks called his supervisor who contacted the police.
Cecil tried to clean up the crime scene with bleach. Yolanda collected a bullet casing in an ash tray. After the police had arrived, defendant returned home, carrying two knives. The police detained and handcuffed Yolanda, Cecil, and defendant. Defendant repeatedly warned them not to speak to the police.
A few hours later, the police recovered Nick’s body from the backyard of a house a few blocks away. Nick had sustained multiple gunshot wounds to the upper body and forehead, causing his death. The absence of stippling meant the gun had been fired from at least two feet away. The bullets removed from Nick’s body matched the rifle found in defendant’s bedroom.
Defendant’s blood test was negative for alcohol and positive for methamphetamine. During his blood test, defendant commented he had to “take care of a rapist.”
At his arraignment on March 9, 2009, defendant bragged he had “popped” the victim “in the chest three times” for “molesting.”
B. Defense Evidence
Defendant was born in Guam. He testified that, between the ages of 9 and 14 years old, he was molested by his Uncle Tony, who fondled him and forced him to engage in oral sex.
Defendant and Nick were friends for many years. Defendant testified that he killed Nick to protect his family because he believed Nick was going to molest and rape the women. Defendant acknowledged Nick had never harmed defendant’s sister or his niece.
The parties stipulated that defendant had methamphetamine convictions in 1996 and 2003 and a conviction for possession of methamphetamine and resisting an officer in 2002.
Defendant had been using methamphetamine three or four times daily during the month before the shooting. Defendant knew that methamphetamine affected his judgment and caused hallucinations. Defendant found himself thinking he had to “get” Nick or Nick would attack Cecil, rape Yolanda, and molest Gabriella. Nick’s laugh resembled defendant’s Uncle Tony’s laugh. Defendant believed the danger from Nick was imminent.
After midnight on February 19, 2009, defendant became afraid that Nick would hurt his family. He continued to smoke and inject methamphetamine until after he took Gabriella to school. Defendant placed the blue tarp in the truck bed to protect it from blood. Defendant loaded his gun with five bullets, a “[g]ood number.... [¶] [f]or killing.” He awakened Yolanda and asked her to start the truck to muffle the gunfire.
Defendant kicked in Nick’s door and woke him up. Nick was unarmed. Before Nick could respond, defendant shot him three times in the chest and once in the head. Defendant intended to kill Nick and taunted him, saying “Yeah, how do you like that now, ” while thinking of his Uncle Tony. At the time of the killing, defendant believed he was killing a molester although at trial he admitted he was wrong. Defendant dumped the body in the backyard of a nearby house he believed was abandoned.
Defendant’s brother, Raymond Cepeda (Raymond), testified that defendant had used methamphetamine for 20 years. In the 1990’s, Raymond observed other eccentric behavior by defendant, including talking to himself aggressively in the mirror and expressing amazement as he tried to balance cardboard on a clothesline. In the 2000’s, Raymond witnessed defendant crawling on the ground with chains wrapped around his neck and a big knife at his waist. Five years before a neighbor had found defendant hiding in the top of a tree for one or two hours.
Raymond often saw defendant carrying a knife when he was using methamphetamine. Defendant slept infrequently and would rise at dawn to perform yard work. Defendant wore a long trench coat, Army boots, sunglasses, and a knife. He was agitated for several hours after using methamphetamine. But defendant was never hostile toward Nick.
III
CROSS-EXAMINATION OF TOXICOLOGIST
On appeal, defendant contends the trial court erred by limiting defendant’s cross-examination of the prosecutor’s expert toxicologist on the subject of a person’s ability to weigh the consequences of his actions while under the influence of methamphetamine. The standard of appellate review for an evidentiary ruling is abuse of discretion, grounded in reasoned judgment and guided by legal principles and legal policies appropriate to the particular matter at issue. (People v. Stone (1999) 75 Cal.App.4th 707, 716, citing People v. Russel (1968) 69 Cal.2d 187, 195 and People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Defendant protests that he was denied his Fifth, Sixth, and Fourteenth Amendment rights to due process, a complete defense, a fair trial, and the right of confrontation and cross-examination.
The expert toxicologist, Ola Bawardi, testified in detail about the effects of methamphetamine on a user. Methamphetamine stimulates the central nervous system, causing hyperactive behavior and euphoric feelings. Chronic abuse can generate paranoia or hallucinations and cause a person to act rashly or impulsively. Although a person under the influence can think and process information and make decisions and choices, judgment, decisionmaking, and attention may be affected.
The trial court sustained the prosecutor’s objection to defendant’s cross-examination of the expert about whether methamphetamine inhibits a person’s ability to consider the consequences of his actions. The court also prohibited the expert from answering a defense hypothetical about whether a person with 244 nanograms of methamphetamine in his bloodstream would be able to think rationally.
All relevant evidence is admissible. (Evid. Code, § 351.) Evidence is relevant when it tends to prove a disputed issue. (In Romeo C. (1995) 33 Cal.App.4th 1838, 1843.) In order to prove first degree murder, the prosecution had the burden to prove beyond a reasonable doubt that defendant premeditated and deliberated the killing. (People v. Rowland (1982) 134 Cal.App.3d 1, 9.)
Defendant asserts the toxicologist’s “testimony concerning the effects of methamphetamine use on a person’s ability to think rationally and weigh consequences was directly relevant to whether [defendant] premeditated and deliberated, or acted in direct response to an actual, but unreasonable belief in the need to defend his family.” Defendant maintains the additional evidence about methamphetamine was critical to his defense and its exclusion violated his federal and state constitutional rights.
Having reviewed the record of the toxicologist’s testimony, we are not persuaded the trial court abused its discretion in limiting the defense cross-examination. The testimony elicited from the toxicologist adequately established defendant’s defense. The toxicologist testified without objection that judgment, decisionmaking, and attention may be affected by the use of methamphetamine and that chronic abuse can cause paranoia, hallucinations, and rash or impulsive behavior.
As such, it was not necessary for defendant to elicit additional testimony that use of methamphetamine could affect his ability to think rationally and weigh consequences. The toxicologist had already testified on those points. The expert’s testimony, in view of the other evidence in the case, provided the jury with more than enough information to decide that defendant killed Nick because his methamphetamine abuse caused him to act irrationally and without considering the consequences, thus negating the elements of premeditation and deliberation. (People v. Page (1991) 2 Cal.App.4th 161, 186-189.) For the same reasons, any error by the trial court in excluding the evidence was harmless. No different outcome was reasonably probable. (Id. at pp. 189-190.)
IV
INSTRUCTIONS ON VOLUNTARY INTOXICATION AND HALLUCINATION
Defendant argues he received IAC regarding several jury instructions. In order to establish a claim of IAC, defendant must demonstrate “(1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) Hence, an IAC claim has two components: deficient performance and prejudice. (People v. Williams (1997) 16 Cal.4th 153, 214-215; People v. Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to establish either component, his claim fails. Here, defendant’s IAC claims fail under both prongs.
Defendant argues he was denied effective assistance of counsel because his trial counsel did not ask for a modification of the jury instructions on voluntary intoxication (CALCRIM No. 625) and hallucination (CALCRIM No. 627), allowing the jury to consider evidence of voluntary intoxication and hallucination with regard to imperfect self-defense. (CALCRIM No. 571.) Defendant claims a different result would have been reasonably probable if the instructions had been modified.
Specifically, defendant urges the instructions should have informed the jury it could consider evidence of voluntary intoxication or hallucination to determine whether defendant acted in imperfect self-defense, i.e., whether defendant actually, but unreasonably believed his family needed to be protected from imminent harm. Defendant maintains the instructions worked against the defense theory of imperfect self-defense, by telling the jury it could not consider evidence of voluntary intoxication or hallucination for any purpose other than specific intent and premeditation. (CALCRIM Nos. 625 and 627.) Defendant contends no informed or tactical reason could exist for this strategy, thus conclusively establishing defense counsel’s inadequate representation. (People v. Pope (1979) 23 Cal.3d 412, 425-426.)
We do not agree the court should have given modified versions of CALCRIM No. 625 and No. 627. Defendant was entitled to argue, as stated in the latter instructions, that the charge of first degree murder could be reduced to second degree murder because the elements of premeditation and deliberation were negated by the evidence of intoxication or hallucination. (In re Christian S. (1994) 7 Cal.4th 768, 771.) Defendant was not entitled to argue, however, that the doctrine of imperfect self-defense can reduce first degree murder to voluntary manslaughter based on intoxication and hallucination.
As the court held in People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1461, “... imperfect self-defense cannot be based on delusion alone” and defendant “was not entitled to have jurors instructed to consider evidence of hallucination on the issue of whether appellant killed in the actual but unreasonable belief in the need to defend against imminent peril.” (See People v. Padilla (2002) 103 Cal.App.4th 675, 678-680.) We do not accept defendant’s effort to distinguish Mejia-Lenares because that case involved hallucinations caused by mental illness instead of hallucinations caused by voluntary intoxication from methamphetamine. (Mejia-Lenares, at pp. 1455, 1457-1458.) Instead, we conclude because there was no objective evidence of an imminent threat at the time of the shooting, except what may have arisen from defendant’s private delusions, an instruction about voluntary intoxication or hallucination related to imperfect self-defense would not have been proper. (People v. Breverman (1998) 19 Cal.4th 142, 162; Mejia-Lenares, at pp. 1447-1453, citing People v. Saille (1991) 54 Cal.3d 1103, 1113-1120.)
Furthermore, the issue of imperfect self-defense was necessarily decided against defendant by the jury under CALCRIM No. 571, which provides that imperfect self-defense requires that defendant act out of a fear of immediate danger and that “Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.” When defendant awoke Nick from his sleep to shoot him, neither defendant nor any member of defendant’s family was facing imminent danger from Nick. Any error was harmless because the evidence established that defendant was afraid of future, not imminent, harm. (People v. Chatman (2006) 38 Cal.4th 344, 392.)
V
CRIMINAL PREDISPOSTION
As mentioned previously, defendant agreed to a stipulation about his criminal history, admitting his three previous methamphetamine-related convictions and a fourth conviction for resisting arrest. The jury was instructed that a prior conviction could be considered when evaluating a witness’s testimony. (CALCRIM No. 316.) Now defendant protests that it was IAC not to request an additional limiting instruction, informing the jury it could not conclude from such evidence that defendant has “a bad character or is disposed to commit crime.” (CALCRIM No. 375.)
An insurmountable difficulty with defendant’s argument is that his defense depended on arguing that he was abusing methamphetamine, so much so that it caused him to kill his close friend. The stipulation about defendant’s methamphetamine convictions served to support his defense rather than to cause him prejudice. It is entirely understandable that defense counsel did not ask for a limiting instruction that might contradict or undermine the defense. (People v. Smithey (1999) 20 Cal.4th 936, 986-987.) For that reason, a limiting instruction would not have been necessary, appropriate, or even desirable. (People v. Collie (1981) 30 Cal.3d 43, 63-64.) We summarily reject defendant’s claim of IAC on this ground.
VI
DISPOSITION
The lower court did not err in its evidentiary rulings or its instructions to the jury. There was no IAC. In the absence of prejudicial error, there is no cumulative error. We affirm the judgment.
We concur: Ramirez, P.J., Miller, J.