Opinion
D078848
10-14-2021
The PEOPLE, Plaintiff and Respondent, v. Linde SMITH, Defendant and Appellant.
Jonathan D. Grossman, Stockton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and Karen Z. Bovarnick, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts III.A, C, E, and F.
Jonathan D. Grossman, Stockton, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and Karen Z. Bovarnick, Deputy Attorneys General, for Plaintiff and Respondent.
AARON, J. I.
INTRODUCTION
During the guilt phase of a bifurcated trial, a jury found Linde Smith guilty of second-degree murder ( Pen. Code, § 187 ) and found true a deadly weapon enhancement allegation (§ 12022, subd. (b)(1)). Smith's mother, Anne Smith (Anne), was the victim. During the sanity phase of the trial, the jury found that Smith was legally sane at the time she committed the offense. The trial court sentenced Smith to a term of 16 years to life in prison, consisting of a 15 years to life term for the murder and a one-year consecutive term for the deadly weapon enhancement.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
The jury found Smith not guilty of first-degree murder.
On appeal, with respect to the guilt phase, Smith claims that the trial court erred in excluding certain evidence pertaining to the severity of her depression at the time of the incident giving rise to the charged offense. In addition, Smith contends that the trial court erred in failing to instruct the jury sua sponte on involuntary manslaughter as an uncharged lesser included offense to murder. Smith also maintains that the cumulative error doctrine requires reversal of the guilt-phase verdicts.
With respect to the sanity phase, Smith claims that the trial court violated her constitutional right to due process under Doyle v. Ohio (1976) 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 ( Doyle ) and its progeny by admitting evidence that she claims amounted to a comment on her exercise of her right to remain silent pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ( Miranda ). She also maintains that the trial court erred in refusing to preclude an expert retained by the prosecution from testifying due to the People's alleged failure to timely provide the defense with the expert's report and related data. Finally, Smith contends that the cumulative error doctrine requires reversal of the sanity verdict.
In a published portion of this opinion, we conclude that the trial court did not err in failing to instruct the jury on the lesser included offense of involuntary manslaughter because there is no substantial evidence in the record to support the giving of the instruction. In another published portion of this opinion, we conclude that the trial court did not commit Doyle error. We reject the remainder of Smith's claims in unpublished portions of this opinion. Accordingly, we affirm the judgment.
II.
FACTUAL BACKGROUND
A. Guilt-phase evidence
1. Smith's mental illness
Smith suffered from depression for many years. In 1995, Smith began to see a psychiatrist, Dr. Alan Brauer, on a somewhat regular basis and continued to see him until shortly before her commission of the offense. Dr. Brauer testified that he had diagnosed Smith with both major depressive disorder and dysthymia, with the former being more severe and episodic, and the latter being a milder version of the disorder that was longer lasting. Dr. Brauer prescribed various psychiatric medications to Smith throughout the time that he treated her. Smith also received care from a different physician, Dr. Schwartley, for a thyroid condition.
2. Smith's December 2014 move into Anne's residence
Smith moved into Anne's residence in December 2014. After Smith moved in, Anne became concerned that Smith was sleeping excessively. She called Dr. Brauer's office to let him know that Smith was sleeping about 18 hours per day. Anne was also concerned about the amount of "stuff" that Smith owned. Anne's desire to give away Smith's clothes was a source of conflict between the two.
Smith testified that she had previously lived with Anne for approximately 21 days in 2013. According to Smith, she moved out and told Anne that she could not live with Anne.
3. The murder
On August 12, 2015, during an argument, Smith hit Anne in the head repeatedly with a hammer, killing her.
The 9-1-1 call was played for the jury during the trial.
The next afternoon, Smith called 9-1-1 and told the operator that she had killed her mother. Smith told the operator, "We had a terrible fight, and I killed her with a hammer." After Smith told the operator that the killing had taken place the prior day, the operator asked Smith why she had waited so long to call 9-1-1. Smith responded, "I just freaked out, and I was just trying to, I don't know, I was trying to sleep and pretend it didn't happen." When asked by the operator what the argument was about, Smith said that her mother was "gonna give all my clothes away." Smith added that she had "borrowed a lot of her [mother's] money," and also noted that she and her mother would both become "overwhelmed." Smith also told the 9-1-1 operator about her strange sleep patterns, which Smith stated was caused by antidepressants that she was taking.
5. The investigation
When police arrived, they found Anne's body in the living room. There was a hammer close to her body. Portions of Anne's skull were on the ground, eight to ten feet from her body, and her brain matter was exposed in the areas where the skull was missing. Anne suffered eight lacerations in the area above her left ear and behind her forehead, as well as extensive skull fractures and injuries to the brain. According to a medical examiner, Anne's cause of death was "[b]lunt force injuries including cranial cerebral injuries due to strikes by [a] hammer."
In addition to fatal head injuries, Anne had a number of defensive injuries consisting of lacerations and contusions on both forearms and on one of her hands, as well as fractures to her left wrist and forearm. Smith suffered no physical injuries.
Shortly after her arrest, while in a patrol car, Smith told a detective at the scene, "I killed my mom."
6. The defense
Smith testified and admitted killing Anne with a hammer. According to Smith, on the morning of the killing, she and her mother were packing up some of Smith's belongings that Anne had insisted Smith donate to charity. This was upsetting to Smith. While they were packing, Anne made several demeaning comments to Smith, and a heated verbal argument ensued.
During the argument, Smith picked up a hammer. Anne attempted to take the hammer from Smith and the two began to struggle. Smith hit her mother on the head with the hammer four times. Smith testified that she thought that the incident was a dream. Smith stated, "And I hit her with a hammer in the head, and I remember hitting her four times, all in a row, like really fast, and it was like a dream." After killing her mother, Smith went to bed in the hope that the "dream" would end. She called the police the following morning and told the 9-1-1 operator that she had killed her mother.
Dr. Pablo Stewart, a psychiatrist, testified that Smith suffered from major depressive disorder and hypothyroidism. Dr. Stewart suggested that the evidence concerning the circumstances surrounding the killing could have caused Smith to act rashly and out of emotion or passion rather than judgment.
B. Sanity-phase evidence
1. The defense's presentation of evidence of Smith's insanity
The defense presented three mental health experts, each of whom opined that Smith was insane at the time of the killing. Two court-appointed experts, Dr. David Berke and Dr. Ashley Cohen, opined that Smith did not know the nature and quality of her acts and she did not appreciate that her acts were legally or morally wrong. The third expert, Dr. Stewart, testified that, in his opinion, Smith knew the nature and quality of her acts, but did not know that her acts were legally or morally wrong.
Dr. Stewart was retained by the defense and he testified in both the guilt and sanity phases of the trial.
All three experts diagnosed Smith as suffering major depressive disorder and hypothyroidism. In addition, each of the three experts stated that, in their opinion, Smith had suffered an episode of depersonalization and derealization—a mental disorder prompted by stress—at the time of the killing. Dr. Stewart described depersonalization and derealization as "sort of looking down at oneself being in some sort of a dream state, not being in full control of your body functions and your thought processes."
The doctors each interviewed Smith, and her statements during these interviews formed part of each doctor's assessment that Smith had suffered a dissociative experience at the time of the offense. For example, Dr. Stewart stated, "Based on my interview with her, which was confirmed by her testimony where she said she flipped out and that she was in a dream -- felt like she was in a dream, all of that is -- I'm convinced that she was in a period of depersonalization at the time of the crime." Dr. Berke stated that Smith had described herself as being like a passenger in a car and in a dream. Similarly, Dr. Cohen agreed with defense counsel that Smith had described her mental state at the time of the offense as "almost being two different people, one, a passenger in a vehicle, and one was driving the vehicle." 2. The People's presentation of evidence of Smith's sanity
The prosecution presented the testimony of psychologist Dr. Kris Mohandie. Dr. Mohandie opined that Smith's claim of being "out of body as if a passenger ... in a vehicle," during the offense was "malingered," and "manufactured," and that Smith's claim of experiencing that "symptom [was] bogus." Dr. Mohandie's conclusion was based, in part, on his review of Smith's 9-1-1 call. Specifically, Dr. Mohandie pointed to Smith's "extraordinary sharing of information spontaneously in [the] 9-1-1 call," and the "emotionality," that she displayed during the call, both of which Dr. Mohandie stated, "you don't see if a person is out of body, if you will, or distancing themselves from what has happened." Dr. Mohandie also noted that Smith described the killing during the 9-1-1 call in a manner that indicated that she knew that the killing had happened, noting that Smith had said on the 9-1-1- call, " ‘I tried to pretend that it didn't happen.’ "
In addition, Dr. Mohandie stated that, during his interview of Smith, she used language that was "completely inconsistent with an out-of-body experience," including "us[ing] feeling terms when ... describ[ing] the violence that she inflicted upon her mother." Dr. Mohandie also noted that in describing the events surrounding the killing during his interviews with her, Smith displayed "no hazing of consciousness," and that the "gestures that [Smith] ma[de] spontaneously while describing these things, [were] ... inconsistent with some sort of out of body experience."
During the sanity phase, the People played two video recordings of portions of Dr. Mohandie's interviews of Smith.
Another factor that caused Dr. Mohandie to "rule[ ] out," "derealization or depersonalization," was that Smith had not experienced dissociation on a recurrent basis. Dr. Mohandie noted that there was "no evidence of any dissociative or depersonalization experiences before or after." In addition, Dr. Mohandie noted that episodes of depersonalization and derealization are ordinarily prompted by "an acute stressor," and observed that "[t]here's nothing about that episode [before the killing] that's going to cause violence." Dr. Mohandie also stated that Smith had engaged in "goal-directed" behavior near the time of the offense, including retrieving a hammer, that was inconsistent with Smith's claim of having suffered a dissociative experience.
Dr. Mohandie supported his opinion that Smith was malingering by stating that there was evidence that Smith had engaged in malingering while incarcerated after her arrest. Specifically, Dr. Mohandie referred to an incident during which "[Smith] exaggerated and made suicidal statements as a way of trying to get her medications renewed or expedited." Dr. Mohandie also noted that there was evidence that Smith had reviewed a mental health report while she was undergoing mental health evaluations, which was "concerning," because it could "potentially ... contaminate and educate [Smith] further even about how this process works." Dr. Mohandie did acknowledge that Smith had received a score of "honest responding," on a psychological test that he administered to her called the Structured Interview of Reported Symptoms (SIRS), which is designed to detecting malingering.
Dr. Mohandie also administered the Minnesota Multi-Phasic Personality Inventory-II (MMPI-II) psychological test to Smith. Dr. Mohandie stated that the results of this test showed that there "was some tendency to over-endorse or exaggerate what was going on." Dr. Mohandie also testified that the MMPI-II was "picking up depression," and it "picked up ... anxiety."
Dr. Mohandie opined that at the time of the murder, Smith knew the nature and quality of her actions and knew that her actions were both morally and legally wrong. He believed that Smith was "absolutely sane."
III.
DISCUSSION
A. Smith fails to establish any error with respect to either the trial court's limitation of the scope of Dr. Stewart's testimony or the trial court's exclusion of testimony pertaining to Smith's journal entries
See footnote *, ante .
B. The trial court did not err in failing to instruct the jury on the uncharged lesser included offense of involuntary manslaughter because there is no substantial evidence in the record to support the giving of the instruction
Smith claims that the trial court erred in failing to instruct the jury, sua sponte, on involuntary manslaughter as an uncharged lesser included offense to the charged offense of murder. Specifically, Smith contends that the jury could have found her guilty of involuntary manslaughter based on her "either committing felony assault with a [deadly] weapon[ ] or acting with criminal negligence." 1. Standard of review
Smith refers to the offense as "assault with a weapon" in one portion of her brief. However, in the modified CALCRIM No. 580 jury instruction that she claims should have been given, Smith refers to the underlying offense as to which she claims an involuntary manslaughter instruction should have been given as "assault with a deadly weapon."
"We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense." ( People v. Cole (2004) 33 Cal.4th 1158, 1218, 17 Cal.Rptr.3d 532, 95 P.3d 811 ( Cole ).) In considering whether the trial court had a sua sponte duty to instruct the jury on lesser included offenses, we construe the evidence in the light most favorable to the appellant. ( People v. Turk (2008) 164 Cal.App.4th 1361, 1368, 80 Cal.Rptr.3d 473.)
2. Governing law
a. A trial court's duty to instruct on lesser included offenses
"A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, ‘ "that is, evidence that a reasonable jury could find persuasive" ’ [citation], which, if accepted, ‘ "would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser. ’ [Citation.]" ( Cole, supra , 33 Cal.4th at p. 1218, 17 Cal.Rptr.3d 532, 95 P.3d 811.) In other words, "[s]uch instructions are required only where there is ‘substantial evidence’ from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense." ( People v. DePriest (2007) 42 Cal.4th 1, 50, 63 Cal.Rptr.3d 896, 163 P.3d 896.)
b. Substantive law
i. Murder and manslaughter
In People v. Brothers (2015) 236 Cal.App.4th 24, 30–31, 186 Cal.Rptr.3d 98 ( Brothers ), the court discussed the relationship between murder and manslaughter, both voluntary and involuntary. The court began by outlining the elements of murder, including the element of malice:
"Murder is ‘the unlawful killing of a human being, or a fetus, with malice aforethought.’ [Citation.] ‘[M]alice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.’ [Citation.] It is implied when the defendant engages in conduct dangerous to human life, ‘ "knows that his conduct endangers the life of another and ... acts with a conscious disregard for life." ’ [Citation.]’ ( Id. at p. 30, 186 Cal.Rptr.3d 98.)
The Brothers court explained that "both voluntary and involuntary manslaughter are lesser included offenses of murder." ( Brothers, supra , 236 Cal.App.4th at p. 30, 186 Cal.Rptr.3d 98.) After describing voluntary manslaughter, the Brothers court described involuntary manslaughter as follows:
"Involuntary manslaughter, in contrast, [is the] unlawful killing of a human being without malice. ( § 192.) It is statutorily defined as a killing occurring during the commission of ‘an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, [accomplished] in an unlawful manner, or without due caution and circumspection.’ ( § 192, subd. (b).) Although the statutory language appears to exclude killings committed in the course of a felony, the Supreme Court has interpreted section 192 broadly to encompass an unintentional killing in the course of a noninherently dangerous felony committed without due caution or circumspection." ( Id. at p. 31, 186 Cal.Rptr.3d 98.)
The Brothers court concluded that an instruction on "involuntary manslaughter as a lesser included offense must [also] be given when a rational jury could entertain a reasonable doubt that an unlawful killing was accomplished with implied malice during the course of an inherently dangerous assaultive felony." ( Brothers, supra , 236 Cal.App.4th at p. 34, 186 Cal.Rptr.3d 98, italics added.) ii. Mental illness and malice
The Brothers court reached this conclusion after first explaining that, ordinarily, "when [a] homicide occurs during the commission of an inherently dangerous felony, the homicide may be murder under the felony-murder rule, irrespective of the presence or absence of malice." (Brothers, supra , 236 Cal.App.4th at p. 31, 186 Cal.Rptr.3d 98, italics added.) However, the Brothers court noted that, under the "merger doctrine" (id. at p. 31, fn. 5, 186 Cal.Rptr.3d 98 ), when the underlying felony is an assaultive crime, the assault merges with the homicide, and application of the felony-murder rule is prohibited. (Id. at p. 31, 186 Cal.Rptr.3d 98.) The Brothers court ultimately concluded that "an unjustified homicide in the course of an inherently dangerous assaultive felony (that is, a killing not amounting to felony murder) and accomplished without malice is ... involuntary manslaughter." (Id. at p. 32, 186 Cal.Rptr.3d 98.)
Prior to legislative changes adopted in 1981, a defendant was able to present evidence that she lacked the capacity to form malice. (See People v. Elmore (2014) 59 Cal.4th 121, 135, 172 Cal.Rptr.3d 413, 325 P.3d 951 ["Diminished capacity was a judicially created concept," that "allowed defendants to argue that because of mental infirmity, they lacked ‘awareness of the obligation to act within the general body of laws regulating society,’ and therefore were incapable of acting with malice"]; see id. at p. 138, 172 Cal.Rptr.3d 413, 325 P.3d 951 ["The 1981 amendments make clear the Legislature intended to eliminate the notion of diminished capacity"].)
In People v. McGehee (2016) 246 Cal.App.4th 1190, 1208, 201 Cal.Rptr.3d 714 ( McGehee ), the court summarized the current state of the law pertaining to the relevance of evidence of a defendant's mental illness and malice:
"While diminished capacity no longer mitigates an intentional killing to voluntary manslaughter [citation], a defendant ‘is still free to show that because of his [or her] mental illness or voluntary intoxication, he [or she] did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought). [Citation.] In a murder case, if this evidence is believed, the only supportable verdict would be involuntary manslaughter or an acquittal. If such a showing gives rise to a reasonable doubt, the killing (assuming there is no implied malice) can be no greater than involuntary manslaughter.’ ([Citation]; see also § 28, subd. (a) [‘Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged’].)
"Thus, in a murder case, instructions on involuntary manslaughter are required where there is substantial evidence that may come in the form of evidence of the defendant's mental illness, raising a question as to whether or not that defendant actually formed the intent to kill." (Ibid. )
iii. Assault with a deadly weapon
"[A]ssault with a deadly weapon is a general intent crime; the required mens rea is ‘an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.’ " ( People v. Perez (2018) 4 Cal.5th 1055, 1066, 232 Cal.Rptr.3d 51, 416 P.3d 42 ( Perez ).)
3. Application
As discussed in part III.B.2.a, ante , it is well established under California law that in order for a trial court to have a sua sponte duty to instruct on a lesser included offense, there must be " ‘evidence from which a jury composed of reasonable persons could conclude "that the lesser offense, but not the greater, was committed." ’ " ( People v. Wilson (2021) 11 Cal.5th 259, 298, 277 Cal.Rptr.3d 24, 484 P.3d 36 ( Wilson ).) Thus, in order for Smith to prevail on her claim that the trial court erred in failing to instruct the jury sua sponte on involuntary manslaughter based on her commission of an assault with a deadly weapon, there must be evidence from which a reasonable jury could find that Smith committed an assault-based involuntary manslaughter, but not murder based on express or implied malice. Our review of the evidence presented during the guilt phase reveals no such evidence.
With respect to her commission of the homicide, Smith testified that, just before the killing, the victim made several comments that Smith considered to be demeaning. Smith became emotional and picked up a hammer. According to Smith, the victim attempted to take the hammer away from Smith. After a physical struggle, Smith described the events that ensued:
"And I still had the hammer in my hand, and she was to my left, and I was right next to her. And I hit her with a hammer in the head, and I remember hitting her four times, all in a row, like really fast, and it was like a dream. And I heard the sound, it was her skull cracking. And then I could feel something that it felt like I hit, like, Jello. And something about that, like, snapped me back into, like, what was going on. And I looked down at my mom, and she was bleeding and her head was -- was wounded, and I suddenly realized that I had done this and I started saying, ‘Mommy, oh my God, Mommy, I'm sorry.’ "
In light of this testimony, we assume for purposes of this opinion that the jury could have found that Smith was in a dream-like state at the time of the killing and lacked express or implied malice while repeatedly striking the victim in the head with a hammer. However, if the jury so found, the jury could not also have found that Smith, while acting in a dream-like state, had the intent to commit an assault with a deadly weapon. Specifically, a jury that found that Smith was in a dream-like state and without malice while hitting her mother in the head with a hammer could not also have found that, at the same time, Smith committed an " ‘intentional act [with] actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.’ " ( Perez, supra , 4 Cal.5th at p. 1066, 232 Cal.Rptr.3d 51, 416 P.3d 42, italics added.) That is because there is no evidence in the record from which the jury could reasonably find that Smith, while acting in a dream-like state, was, at the same time, acting intentionally. Further, because the commission of an assault requires an intentional act, a reasonable jury could not find that Smith was in a dream-like state and also find that she was acting in an intentional manner sufficient to commit an assault. Because there was no evidence that would have supported a conclusion that Smith committed the lesser offense of an assault-based involuntary manslaughter, but not the greater offense of murder, no lesser included offense instruction on involuntary manslaughter was warranted. In short, Smith either committed murder, voluntary manslaughter, or no offense at all.
In her brief on appeal, Smith asserts, without citation to any evidence in the record, that "[w]hile she had the intent to assault , it was not so clear in light of her mental illness, she had malice or the intent to kill." (Italics added.) As discussed in the text, our review of the record reveals no evidence upon which a trier of fact could find that she lacked malice but "had the intent to assault."
At oral argument, Smith's counsel argued that, although Smith knew that she was hitting her mother in the head repeatedly with a hammer and thus had the intent to commit an assault, because of her mental illness and emotional state, she did not appreciate the dangerousness of such act. However, we see no evidence in the record, including Smith's testimony recounted above, from which a reasonable jury could make such a finding. Stated differently, there is no evidence that any dissociative state under which Smith was acting at the time of the offense operated in this peculiar manner, i.e., there is no evidence that Smith's mental state was such that that she maintained an understanding that she was hitting her mother in the head repeatedly with a hammer, but lacked sufficient cognition to " ‘ "know[ ] that [her] conduct endanger[ed] the life of another." ’ " (Brothers, supra , 236 Cal.App.4th at p. 30, 186 Cal.Rptr.3d 98.)
The trial court instructed the jury on voluntary manslaughter based on heat of passion.
We acknowledge that there are broad statements in case law suggesting that, when a defendant is charged with murder, an instruction on involuntary manslaughter is required whenever the jury could find that the defendant lacked an intent to kill. (See McGehee, supra , 246 Cal.App.4th at p. 1208, 201 Cal.Rptr.3d 714 ["[I]n a murder case, instructions on involuntary manslaughter are required where there is substantial evidence that may come in the form of evidence of the defendant's mental illness, raising a question as to whether or not that defendant actually formed the intent to kill"]; People v. Rogers (2006) 39 Cal.4th 826, 884, 48 Cal.Rptr.3d 1, 141 P.3d 135 ( Rogers ) ["An instruction on involuntary manslaughter is required whenever there is substantial evidence indicating the defendant did not actually form the intent to kill"].) However, we understand the law to be that, in order for a trial court to have a sua sponte duty to instruct on involuntary manslaughter, there must be substantial evidence from which the jury could find that the defendant lacked express or implied malice, but committed the lesser included offense of involuntary manslaughter. ( People v. Abilez (2007) 41 Cal.4th 472, 515, 61 Cal.Rptr.3d 526, 161 P.3d 58 [" ‘If the evidence presents a material issue of whether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would violate the defendant's constitutional right to have the jury determine every material issue’ "].) To conclude that an involuntary manslaughter instruction is required in every case in which a jury could find that a defendant committed a killing but lacked malice would do away with the bedrock principle that an uncharged lesser included offense instruction is required only if there is substantial evidence upon which a jury could find both that the defendant did not commit the greater offense, but did commit the lesser. (See, e.g., Wilson, supra , 11 Cal.5th at p. 298, 277 Cal.Rptr.3d 24, 484 P.3d 36.) We aware of no authority that would support such a conclusion and decline to reach it here.
The formulations in McGehee and Rogers also should not be read to suggest that murder requires proof an "intent to kill," (McGehee, supra , 246 Cal.App.4th at 1208, 201 Cal.Rptr.3d 714 ; Rogers, supra , 39 Cal.4th at p. 884, 48 Cal.Rptr.3d 1, 141 P.3d 135 ), since implied malice murder does not require proof of such intent. (See, e.g., People v. Fontenot (2019) 8 Cal.5th 57, 80, 251 Cal.Rptr.3d 341, 447 P.3d 252 ["murder ... requires an act causing the death of another, but not the intent to kill, as implied malice will suffice"]; People v. Gonzalez (2012) 54 Cal.4th 643, 653, 142 Cal.Rptr.3d 893, 278 P.3d 1242 [same].)
We also are not persuaded by Smith's contention that there was substantial evidence supporting an involuntary manslaughter instruction based on her having acted with criminal negligence. (Citing People v. Glenn (1991) 229 Cal.App.3d 1461, 280 Cal.Rptr. 609.) In Glenn , the Court of Appeal concluded that an involuntary manslaughter instruction was required because "[p]art of [the defendant's] testimony suggests the stabbing [that resulted in a homicide] was accidental." ( Id. at p. 1465, 280 Cal.Rptr. 609.) The testimony from which the Court of Appeal reached this conclusion was the following:
"Glenn [the defendant] testified he removed the knife from his waistband and placed it in his lap while he sat at the counter. When he got up from the counter and started walking toward the door he tried, at the same time, to put the knife back in his pants. As he was walking and trying to slip the foot-long knife back into his pants he heard the victim coming up behind him. The victim appeared about to grab Glenn and, in a reflex action, Glenn turned with the knife in his hand and the knife entered the victim's chest causing a fatal wound. Glenn stated, ‘I didn't try to stick it. It's just that when he turned--when I turned and he is coming, and it just happened like at the same time.’ " ( Id. at pp. 1465–1466, 280 Cal.Rptr. 609.)
There was no comparable evidence in this case from which a jury could have reasonably found that Smith's acts in striking the victim in the head repeatedly with a hammer was accidental.
Accordingly, we conclude that the trial court did not err in failing to instruct the jury on the lesser included offense of involuntary manslaughter, because there is no substantial evidence to support the giving of the instruction.
In the alternative, Smith argues that defense counsel provided ineffective assistance in failing to request an instruction on involuntary manslaughter. Given our conclusion that there is no substantial evidence to support the giving of an involuntary manslaughter instruction, we reject Smith's ineffective assistance claim. (See People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836, 74 Cal.Rptr.3d 416 ["Defense counsel's failure to request instructions on unreasonable self-defense and lesser included offenses based on that theory did not constitute ineffective assistance of counsel," because instructions were not supported by the evidence or the law and "[c]ounsel's failure to make a futile or unmeritorious motion or request is not ineffective assistance" (italics omitted)].)
C. Smith is not entitled to reversal of the guilt phase verdict pursuant to the cumulative error doctrine D. The trial court did not err in admitting evidence during the sanity phase of the trial that Smith had not described being in a state of depersonalization or derealization prior to her evaluation with Dr. Stewart
See footnote *, ante .
Smith claims that the trial court erred in admitting evidence during the sanity phase that Smith had not described being in a state of depersonalization or derealization prior to her evaluation with Dr. Stewart. She contends that the evidence was inadmissible as violative of her constitutional right to due process under Doyle, supra , 426 U.S. 610, 96 S.Ct. 2240 and its progeny because it amounted to a comment on her exercise of her right to remain silent after having been advised of her rights under Miranda, supra , 384 U.S. 436, 86 S.Ct. 1602.
We assume for purposes of this decision that the de novo standard of review applies in determining whether the trial court violated Smith's constitutional right to due process under Doyle. (See People v. Seijas (2005) 36 Cal.4th 291, 304, 30 Cal.Rptr.3d 493, 114 P.3d 742 ["independent review ‘comports with this court's usual practice for review of mixed question determinations affecting constitutional rights’ "].)
Smith also contends that "[a]t the very least, the evidence should have been excluded under Evidence Code section 352." She also appears to contend that the trial court erred in admitting the evidence because it was irrelevant. Smith did not assert Evidence Code section 352 or relevancy objections in the trial court and as a result, her appellate claims on these grounds are forfeited. (See Evid. Code, § 353 [providing in part that a "verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion"].)
Smith also broadly asserts that trial counsel was "ineffective to the extent she failed to make a proper objection or motion," (capitalization omitted) but fails to present any argument that trial counsel's failure to make an Evidence Code section 352 or relevancy objection amounted to ineffective assistance. Accordingly, this line of argument is forfeited as well. (See, e.g., People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4, 98 Cal.Rptr.2d 894 ["an argument raised in ... perfunctory fashion is waived"].) Accordingly, we address in the text the claim that Smith properly preserved in the trial court and on appeal, i.e., her claim of Doyle error.
1. Factual and procedural background
a. Pretrial and guilt phase background
Prior to the trial, in a motion in limine, the People stated that they intended to offer in evidence Smith's statements to the 9-1-1 operator and to a police officer immediately after her arrest. However, the People indicated that they did not intend to introduce in evidence during their case in chief Smith's interview at the police station shortly after she was arrested because the interview contained statements that Smith made after invoking her right to counsel. During the guilt phase of the trial, the People introduced in evidence a recording of Smith's 9-1-1 call and statements that she made to a police officer in a patrol car immediately after her arrest.
The parties stipulated that the jury could consider all evidence offered during the guilt phase in the sanity phase.
b. Dr. Stewart's testimony on direct examination during the sanity phase
During direct examination in the sanity phase of the trial, Dr. Stewart described to the jury the documents that he reviewed in preparing for his psychiatric evaluation of Smith:
"[Defense counsel:] Okay. Now, in this case, you were hired to conduct the psychiatric evaluation of Ms. Smith. What documents did you review in preparation for that evaluation?
"[Dr. Stewart:] Police reports, medical records, including the 20-plus years that she was in treatment with Dr. Brauer, the Santa Clara County Jail medical and psychiatric records."
Dr. Stewart also extensively discussed Smith's jail records, which documented that Smith had been placed on a psychiatric hold while in jail awaiting trial.
Dr. Stewart also testified, "I'm convinced that [Smith] was in a period of depersonalization at the time of the crime."
c. The prosecutor's cross-examination of Dr. Stewart and the defense's Doyle objection
The prosecutor asked Dr. Stewart whether he had asked Smith "about deliberation," and what Smith had said in response. Dr. Stewart responded:
"I asked her if she had planned to kill her mother and she said no, she was in this dream-like state where she didn't have control over her mental processes
or control of her body, and had a hammer in her hand and then she was in this state, observing herself hitting her mother and that during the course of the hitting, she -- as she has testified to and as she told me, she said she snapped out of it when she felt the hammer going into her mother's head. That's what she said."
Shortly thereafter, the following colloquy occurred during which the trial court overruled defense counsel's Doyle objections:
"[The prosecutor:] All right. Now, you talked to [Smith] in May of 2017; is that correct, thereabouts?
"[Dr. Stewart:] September of '16.
"[The prosecutor:] Okay. But your report was May of 2017?
"[Dr. Stewart:] Correct.
"[The prosecutor:] Okay. So you talked to her in September?
"[Dr. Stewart:] And January of '17.
"[The prosecutor:] January of '17. Okay. Was that the first time, to your knowledge, that [Smith] mentioned this idea of depersonalization and derealization ?
"[Defense counsel:] Objection, Your Honor. Doyle error.
"[The court:] Overruled.
"[Dr. Stewart:] She never mentioned depersonalization or derealization.
"[The prosecutor:] She didn't use those words because that's not in her vocabulary, but was that the first time, to your knowledge -- and granted, this jury already knows that you reviewed all the jail records and you reviewed all the police records and so you reviewed all the statements of everyone concerned, okay -- was that the first time that she mentioned, when you met with her, this idea of being outside of herself or being in a car or not acting within herself?
"[The prosecutor:] Same objection, Your Honor.
"[The court:] Overruled.
"[Dr. Stewart:] In my review of the police records, I don't remember her describing that exact -- using those exact terms of being in a dream state. I believe she said she got in an argument with her mother and ended up hitting her with a hammer. But to answer your question, I'm unaware of if [or] when she told me that, that that was the first time. She may have said it to someone else that I'm not aware of."
Immediately thereafter, the prosecutor asked Dr. Stewart whether Smith had suggested having been in a state of derealization at the time of the offense during either the 9-1-1 call or during her conversation with a detective immediately after her arrest:
"[The prosecutor:] All right. You heard the 9-1-1 call in this case --
"[Dr. Stewart:] Yes.
"[The prosecutor:] -- as part of the materials that were provided to you?
"[Dr. Stewart:] Yes.
"[The prosecutor:] She doesn't mention in that call any sort of comments that would lead you to believe that she was in a state of derealization ; right?
"[Dr. Stewart:] In the call, no.
"[The prosecutor:] Okay. And you've heard also the patrol -- we're calling it an interview, but there's a colloquy between her and one of the detectives in the patrol car immediately after the arrest. Do you know what I'm talking about?
"[Dr. Stewart:] I believe she voluntary says something about killing her mother.
"[The prosecutor:] They said, ‘It's going to be okay,’ and she said, ‘It's not okay. I killed my mother.’ Do you remember that?
"[Dr. Stewart:] Yes.
"[The prosecutor:] And there's no mention there of any sort of being outside of a body or anything of that sort; correct?
"[Dr. Stewart:] Correct.
"[The prosecutor:] You would agree that those statements came much closer in time to the murder than your conversation with her; correct?
"[Dr. Stewart:] Absolutely.
"[The prosecutor:] So at the time, the events would have been fresh in her mind; correct?
"[Dr. Stewart:] Well, it certainly was closer in time."
d. The discussion of Smith's Doyle objection among the court and counsel outside the presence of the jury
During the prosecutor's cross-examination of Dr. Stewart, the trial court excused the jury for a recess. During the recess, the following discussion of Smith's Doyle objection occurred:
"[Defense counsel:] I do want to put my objection on the record in regards to questioning of Dr. Stewart about the fact that the first time my client made statements regarding the offense, that went to depersonalization and derealization was when Dr. Stewart talked to her, I believe. It's an error on the prosecution's part to ask questions regarding her assertion of her Fifth Amendment right to remain silent and not talk to the police at the time of the incident, and so asking questions that are posed in that manner opens the door now to, unfortunately, the Defense might having to go into that area.
"[The court:] Okay.
"[The prosecutor:] Your Honor, I do not specifically recall -- I don't believe there is a mention in that -- and I know that Counsel's referring to the questioning of the defendant by Detective [DiGiovanna], in which she invoked and which the People agreed we were not going to use. I don't believe that she says anything about depersonalization or derealization in that conversation. But in any event, I certainly was not referring to that at all. I was specifically referring to the statements that had been admitted here in court which include the 9-1-1 call and the patrol [car] questioning, as well as the defendant's own testimony. I was not making any reference at all to that particular piece of evidence.
"[Defense counsel:] Your Honor, I think posing questions such as, ‘This is the first time that Ms. Smith made statements to you in regards to being in a dream-like state,’ you know, ‘not having control of her mental processes,’ that line of questioning, I think, is improper, given the fact that she invoked with the police. I think if those questions were -- if she was interviewed by the police and those questions were posed of her and she hadn't invoked then, she might have made those statements. But the fact that she invoked --
"[The court:] No. I understand your objection. [Dr. Stewart] said that he looked at the police reports. Did the police reports contain the statement that is not -- that the People have indicated they're not using, the one that was made where she did invoke?
"[The prosecutor:] Yes. There is, I think, a summary by Detective [DiGiovanna] in there.
"[The court:] Okay. So [Dr. Stewart] looked in there. And my recollection is that he didn't see any mention of these statements in the police reports or in the 9-1-1 call or her testimony, or -- but he specifically said he did not -- he says, ‘I don't remember them in these other things, but I don't know whether or not
she has ever made those statements before.’
"[Defense counsel:] Your Honor, I think making any comment on a person's invocation of their Fifth Amendment right, the fact that she previously didn't make a statement when they have invoked, is error. Whether they made any kind of statement during that limited interview by Detective [DiGiovanna], just the reference to it, I believe, is error, and that was the basis for both my objections during the time of questioning.
"[The court:] And I overruled it.
"[Defense counsel:] Yes.
"[The court:] Okay. I still think they should be overruled.
"[Defense counsel:] Okay."
e. Dr. Mohandie's testimony
Dr. Mohandie testified that the first time Smith described being in a state of depersonalization or derealization was several months after the offense.
Although not material to Smith's claim, there is some ambiguity in the record as to the amount of time that Dr. Mohandie stated had passed from the commission of the offense to Smith's first disclosure of dissociation. During direct examination, the prosecutor asked Dr. Mohandie to discuss inconsistencies between "information that you learned versus the investigative documents ...." Dr. Mohandie responded:
"Right. Well, basically, the 9-1-1 call in particular, there's a very clear discussion, in my opinion, of a statement, if you will, by Ms. Smith about what happened. There was no evidence whatsoever of any kind of dissociative experience or depersonalization, which is what she's going to say later, the first time nearly three months later , and certainly in the interview with me on May 2nd of this year; so that's a very significant inconsistency, that particular fact.
"And there's no behavioral evidence of it during that 9-1-1 call, no references to anything that would be like that; rather, it was quite the opposite, sort of lucid, it was very present, it was very emotion-laden, which is not what you would see." (Italics added.)
However, on cross-examination, Dr. Mohandie indicated that Smith's first disclosure had occurred a "year and three months," after the offense. (Italics added.)
During defense counsel's cross examination of Dr. Mohandie, the following colloquy occurred:
"[Defense counsel:] Do you have any evidence in the discovery that you've received indicating that [Smith] checked out some books on mental disorders, specifically depersonalization or derealization or any other mental disorders?
"[Dr. Mohandie:] I don't know anything about that, no.
"[Defense counsel:] So you don't have any basis for your claim that you think she made this up afterwards?
"[Dr. Mohandie:] Well, the basis is -- I do have a basis. The basis is that she's reporting a disorder that is not realistically being reported in terms of how these things happen, that is inconsistent with the behavioral and emotional evidence, as I see it, and that there was no contemporaneous -- that is at the time or around the time -- evidence of it, and it doesn't appear until the year and three months later. That is the basis of my finding.
"[Defense counsel:] And you're aware that that's the first time that she speaks to a psychiatrist; is that correct, about her case?
"[Dr. Mohandie:] It may be.
"[¶] ... [¶]
"[Defense counsel:] Okay. And when she's arrested and she is charged with a crime and provided an attorney, at that point, she's not allowed to be interviewed,
is that fair to say, without the consent of her attorney?
"[Dr. Mohandie:] You mean after she invoked?
"[Defense counsel:] If an individual is arrested, charged with a crime, and given an attorney, no one is allowed to interview her at that point; correct?
"[Dr. Mohandie:] True.
"[Defense counsel:] And so between that time and the time that Dr. Stewart met with her, there was no opportunity for her to provide a statement to anyone except her attorney; is that correct?
"[Dr. Mohandie:] In terms of an official statement, sure. Agreed."
f. Smith's request for a pinpoint instruction and motion for a mistrial
During a hearing outside the presence of the jury the following day, the trial court indicated that defense counsel had stated in chambers that she believed that Dr. Mohandie's reference to Smith having invoked her right to counsel was a violation of a court order because, just prior to having made that statement, Dr. Mohandie had been admonished by counsel outside the presence of the jury not to refer to Smith's statements to the police after she had invoked her right to counsel. Defense counsel stated the following:
Specifically, the trial court stated that defense counsel believed that Dr. Mohandie's reference to Smith's invocation violated a court order as follows:
"You believe that that was a violation of a court order because prior to that time, we had a discussion in the hallway where we reaffirmed that the statements that Ms. Smith made to police officers at the police station, not the one that was referred to in the car at the scene, but those statements were potentially a violation of Miranda. We didn't really necessarily get to that because both counsel agreed that the [prosecutor] agreed he was not going to try and introduce that. [¶] ... [¶] So I don't know that there was a specific ruling on it, but I'm satisfied that both the parties believe that it was a violation of Miranda. And we reaffirmed in the hallway that he would not refer to that, and then I came out, told [Dr. Mohandie] to go out into the hallway with counsel, and I wasn't present, but apparently that was told to [Dr. Mohandie], and then he came back and it was after that that [Dr. Mohandie] made this statement," about Smith invoking.
"I'm asking the Court specifically for a pinpoint instruction indicating that the witness for the prosecution intentionally violated instructions from the judge. I didn't indicate ‘court order,’ and that was the instructions you gave us in the hallway to go outside, talk to him, let him know not to discuss anything in regards to the statements that Ms. Smith made to the police because it was a violation of her right when she invoked.
"I also asked the Court to -- well, let me read the statement in its entirety. ‘The witness for the prosecution intentionally violated instructions from the judge. You can consider that fact when evaluating what weight to give to this witness's credibility and testimony in this case. And, furthermore, you should not consider any evidence regarding Linde Smith's timing of her disclosures of depersonalization and derealization episode.’
"And in regards to the last point, Your Honor, we've had multiple conversations regarding statements that have been made -- or questions that have been asked in cross-examination of my witnesses as well as statements made by the prosecution witness that her -- Linde Smith's reported symptoms regarding depersonalization and derealization were actually a year and three months later,
and therefore, they're suspect. I believe, as I had previously indicated to the Court, that that was a Doyle error, and it is in violation of the Fourteenth Amendment, due process rights of my client, as well as the Doyle case, 426 U.S. 610 .
"I am requesting that the Court consider a mistrial, given the fact that Dr. Mohandie made a statement regarding invocation, and made several statements regarding the fact that Linde Smith disclosed the statement a year and three months later when she had, in fact, invoked her right to remain silent."
The prosecutor objected to the giving of the instruction and argued that there had been no Doyle violation. After further discussion from the prosecutor and the defense, the trial court ruled as follows:
"All right. Couple things. No. 1, with regard to the request for a pinpoint instruction, and that instruction which is Court Exhibit 1, I denied it as written, and for [a] number of reasons, one of which being that I do not believe that I have sufficient proof that the witness intentionally violated an instruction from the judge.
"Also, the instruction says that you should not consider any evidence regarding Linde Smith's timing of her disclosures of depersonalization and derealization episode as part of that instruction, and I think that's contrary to the evidence and goes far beyond what he said.
"I did propose that I would read the following, quote, ‘When Dr. Mohandie, in response to a question by defense counsel, asked, quote, "you mean after she invoked," end quote, that comment was an improper reference to the defendant's actions and contrary to an agreement by the parties after a discussion with the Court. You may not consider, for any purpose, whether the defendant invoked any right, and you may not consider the doctor's comment for any reason.’
"Counsel opted not to allow that -- or not to have that read to the jury."
Defense counsel responded that the reason she had rejected the trial court's offer to provide its proposed instruction was that the court's proposed instruction highlighted the issue of invocation, while the defense's proposed instruction was "more vague."
The court interjected:
"That's fine. That was another reason for denying the pinpoint instruction[,] the fact that it has no context. It simply says, ‘The witness for the prosecution intentionally violated instructions from the judge.’ It doesn't tell the jury what particular instructions of the Court were violated, and I think that is misleading as well."
The court also denied the defense's request for a mistrial.
g. The prosecutor's closing argument
During the prosecutor's closing argument, the prosecutor argued that it was important for the jury to view Smith's interview with Dr. Mohandie in part because "it shows [the jury] the progression of her made-up story, okay?" The prosecutor continued:
"When [Smith] first tells 9-1-1 what happened, she hasn't yet thought of this idea of being outside a car and not being in her own body, okay? She only adds that later when she meets Dr. Stewart, okay?
"By the time the defendant got to court here and testified before you, the day that she was examined and was cross-examined by me, the story was complete. All the parts were there."
2. Governing law
In Doyle, supra , 426 U.S. 610, 96 S.Ct. 2240, the United States Supreme Court held that "the use against defendant of a postarrest invocation of rights following a Miranda admonition violates due process." ( People v. Thomas (2012) 54 Cal.4th 908, 936, 144 Cal.Rptr.3d 366, 281 P.3d 361, citing Doyle, supra , 426 U.S. at p. 619, 96 S.Ct. 2240.) The Doyle court reasoned, "[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." ( Doyle, supra , at p. 618, 96 S.Ct. 2240.)
In Wainwright v. Greenfield (1986) 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623, the United States Supreme Court extended Doyle and held that the prosecution's use of the defendant's post- Miranda silence to demonstrate a defendant's sanity is improper. ( Id. at p. 292, 106 S.Ct. 634.) In Wainwright , two police officers testified that shortly after his arrest, the defendant had twice exercised his right to remain silent and his desire to consult with counsel before answering any questions. ( Id. at pp. 286–287, 106 S.Ct. 634.) During closing argument, "the prosecutor reviewed the testimony of [the officers] and suggested that [defendant's] repeated refusals to answer questions without first consulting an attorney demonstrated a degree of comprehension that was inconsistent with his claim of insanity." ( Id. at p. 287, 106 S.Ct. 634.) The Wainwright court held that this testimony and argument was improper under Doyle , reasoning:
"The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. It is equally unfair to breach that promise by using silence to overcome a defendant's plea of insanity." ( Wainwright, supra , at p. 292, 106 S.Ct. 634.)
"But this does not mean that it always is error to permit evidence that a defendant exercised his right to counsel." ( People v. Huggins (2006) 38 Cal.4th 175, 198, 41 Cal.Rptr.3d 593, 131 P.3d 995.) "To establish a violation of due process under Doyle , the defendant must show that the prosecution inappropriately used his postarrest silence for impeachment purposes and the trial court permitted the prosecution to engage in such inquiry or argument. [Citations.] ... An assessment of whether the prosecutor made inappropriate use of defendant's postarrest silence requires consideration of the context of the prosecutor's inquiry or argument. [Citation.] A violation of due process does not occur where the prosecutor's reference to defendant's postarrest silence constitutes a fair response to defendant's claim or a fair comment on the evidence. [Citations.] ‘... Doyle's protection of the right to remain silent is a "shield," not a "sword" that can be used to "cut off the prosecution's ‘fair response’ to the evidence or argument of the defendant." [Citation.]’ " ( People v. Champion (2005) 134 Cal.App.4th 1440, 1448, 37 Cal.Rptr.3d 122 ( Champion ).)
In addition, a prosecutor does not violate Doyle by inquiring about prior voluntary statements that a defendant has made. ( Anderson v. Charles (1980) 447 U.S. 404, 409, 100 S.Ct. 2180, 65 L.Ed.2d 222 ( Anderson ) [where "questions were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement," Doyle is not violated].) As the Anderson court explained:
" Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements.... As to the subject matter of his statements, the defendant has not remained silent at all." ( Anderson, supra , at p. 408, 100 S.Ct. 2180.)
3. Application
Smith argues, "In violation of Doyle , the prosecution's questions and the resulting testimony, as well as Dr. Mohandie's testimony, suggested that [Smith's] claim of depersonalization or derealization was fabricated because she did not mention it after invoking her right to silence under the Fifth and Fourteenth Amendments," until speaking with mental health experts more than a year after the offense. We are not persuaded.
We first consider the prosecutor's cross-examination of Dr. Stewart. Dr. Stewart testified on direct examination that he relied on "[p]olice reports ... [and] the Santa Clara County Jail medical and psychiatric records," in conducting his psychiatric evaluation of Smith. Dr. Stewart also testified at length about the content of Smith's jail psychiatric records. Given Dr. Stewart's testimony that he relied on "police reports," and "jail records," it was not Doyle error for the prosecutor to ask Dr. Stewart whether there were any statements in the "jail records" and "police reports" indicating that Smith had referenced "this idea of being outside of herself or being in a car or not acting within herself." Doyle is based on the idea that it is "fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." ( Doyle, supra , 426 U.S. at p. 618, 96 S.Ct. 2240.) However, the fundamental fairness concerns animating Doyle and its progeny do not prohibit a prosecutor from cross-examining a defense expert about whether there are statements to support his opinion in the documents on which the defense expert has expressly stated that he relied. To conclude otherwise would be to allow the defendant to use " ‘the right to remain silent ... [as] a "sword" ... to "cut off the prosecution's ‘fair response’ to the evidence or argument of the defendant." ’ " ( Champion, supra , 134 Cal.App.4th at p. 1448, 37 Cal.Rptr.3d 122.) Doyle is not to be applied in such an instance.
This is particularly so given that the prosecutor's questions did not make any specific reference to the police interview during which Smith apparently invoked her right to remain silent. Instead, and in considering the "context of the prosecutor's inquiry" ( Champion, supra , 134 Cal.App.4th at p. 1448, 37 Cal.Rptr.3d 122 ), we note that the specific statements of Smith that the prosecutor did reference were Smith's 9-1-1 call and her conversation with a detective immediately after her arrest. The prosecutor did not violate Doyle by asking Dr. Stewart whether Smith had mentioned depersonalization when making these statements. (See Anderson, supra , 447 U.S. at p. 408, 100 S.Ct. 2180 [" Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements"].)
A transcript of the interview is not in the record.
Similarly, the gist of Dr. Mohandie's testimony and the prosecutor's closing argument that Smith references on appeal was that Smith's claim of depersonalization lacked believability because her claim was inconsistent with voluntary statements that she made near the time of the offense. (See pt. III.D.1.e. and pt. III.D.1.g, ante. ) For example, Dr. Mohandie noted that there was "no evidence whatsoever of any kind of dissociative experience or depersonalization," in Smith's 9-1-1 call. Similarly, during his closing argument, the prosecutor argued that when Smith "first tells 9-1-1 what happened, she hasn't yet thought of this idea of being outside a car and not being in her own body," and that Smith "only adds that later when she meets Dr. Stewart ...." Arguing such inconsistencies does not constitute Doyle error. (See Anderson, supra , 447 U.S. at p. 408, 100 S.Ct. 2180.) Further, neither Dr. Mohandie nor the prosecutor ever stated or suggested that Smith's testimony was unbelievable because she had invoked her right to remain silent during a police interview.
In addition, Dr. Mohandie's mention of Smith's invocation of her Miranda rights during defense counsel's cross-examination did not constitute Doyle error or warrant the granting of a mistrial. While defense counsel argued that Dr. Mohandie's reference constituted an intentional violation of the trial court's instructions, the record does not contain the precise admonishment that Dr. Mohandie received prior to providing this testimony. (See fn. 28, ante. ) Further, the trial court could have reasonably found that Dr. Mohandie's reference to Smith's invocation reflected a good faith attempt to answer defense counsel's question. In sum, the trial court reasonably determined that it lacked "sufficient proof that the witness intentionally violated an instruction from the judge." Further, the trial court's offer to provide an admonishment to the jury was a reasonable approach to cure any potential prejudice from Dr. Mohandie's statement. And, while defense counsel acted reasonably in making the tactical decision to decline the trial court's offer to provide such admonishment, the trial court was not obligated to grant a mistrial based on Dr. Mohandie's mere mention of Smith's having "invoked." This is particularly true given that Dr. Mohandie agreed with defense counsel that Smith had not had an opportunity to make an "official statement" between the time she was provided with an attorney and the time that Dr. Stewart interviewed her. Finally, the trial court provided a reasoned explanation for denying defense counsel's requested pinpoint instruction, i.e., the instruction was vague and unsupported by the evidence.
As noted in part III.D.1.e, ante , Dr. Mohandie referenced Smith's invocation of her Miranda rights during the following colloquy:
"[Defense counsel:] Okay. And when she's arrested and she is charged with a crime and provided an attorney, at that point, she's not allowed to be interviewed, is that fair to say, without the consent of her attorney?
"[Dr. Mohandie:] You mean after she invoked?"
Accordingly, we conclude that the trial court did not violate Smith's constitutional right to due process under Doyle and its progeny.
See footnote *, ante .
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
O'ROURKE, Acting P. J.
IRION, J.