Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, F. Paul Dickerson III, Judge, Super. Ct. No. SWF008799
HALLER, Acting P. J.
Dustin Stanford appeals from a judgment convicting him of second degree murder and premeditated attempted murder. He contends: (1) the trial court erred in excluding toxicology evidence showing the murder victim was under the influence of methamphetamine at the time of the killing; (2) the trial court erred in concluding a police officer was qualified to testify regarding the mental states of methamphetamine users; and (3) the evidence was insufficient to support the premeditated attempted murder verdict. We agree the trial court erred in excluding the victim's toxicology results, but conclude the error was not prejudicial. We reject Stanford's remaining arguments, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On August 11, 2004, Stanford, a chronic methamphetamine user, entered Michael McGee's unlocked home and attacked and stabbed McGee for no apparent reason. Two days later, on August 13, Stanford attacked and killed his girlfriend, Amber Frink, at his parents' residence.
According to Stanford's parents, Stanford began using methamphetamine in 2001 when he was 21 years old. In the following years, he was in and out of drug rehabilitation programs. In June 2004, he was told to leave the family home in Murrieta because of his continued drug use. On July 8, 2004, he entered another rehabilitation program but did not complete the program. Instead, on July 11, 2004, he returned to the family home and asked to be allowed to stay there. He explained that he "needed to get his life together" because Frink was pregnant with his baby. Stanford appeared excited and happy about being a father and it appeared he was not on drugs. His parents thought Frink was a good influence on him and agreed to let him move back home.
During the weeks following the announcement that Frink was pregnant, Stanford and Frink took steps to ensure a healthy pregnancy and birth. Stanford was very concerned that Frink eat proper foods, and his mother bought foods that were appropriate for a pregnant woman. Frink read a pregnancy book, took prenatal vitamins, bought baby clothes, and selected a name for the baby. About two weeks before the killing, Stanford told his mother that he might not be the father of the baby. Stanford stated he did not care and that he would "stand by" Frink and act as the baby's father even if the baby was not his, but that he would not put his name on the birth certificate until after DNA testing.
On July 28, 2004, Frink went to a health clinic and requested a pregnancy test. On that same day she was informed that a urine test showed she was not pregnant. On August 4, 2004, she was informed that a blood test confirmed she was not pregnant. Stanford was apparently unaware that Frink was not actually pregnant.
On August 8, 2004 (the Sunday before the killing), Stanford came to his parents' home acting upset and agitated. He was "pretty wired" and appeared to be under the influence of drugs. He told his parents that Frink "was killing the baby." Stanford's father thought this meant that Frink was planning to have an abortion. Stanford's mother interpreted the statement to mean that her son was afraid Frink was killing the baby from whatever she was doing that weekend. Stanford did not stay at his parents' home on Wednesday (August 11) or Thursday (August 12) and they did not know where he was.
Attack on McGee
On August 11, 2004, Stanford was with his friend, Alberto Arias, at their friend Lynn's home in Anza. According to Arias, they had been using drugs all day. Some time that night Stanford left Lynn's home, purportedly to go for a walk and smoke a cigarette. Instead, Stanford went to McGee's nearby mobile home.
McGee testified that at about 11:00 or 11:30 p.m. on August 11, a man (who turned out to be Stanford) entered his home through an unlocked sliding glass door. Stanford jumped on McGee while he was sleeping on his back on the living room floor. Stanford sat on McGee's torso and held a knife to McGee's neck. Stanford was breathing hard, as if he was "pumping himself up." McGee grabbed Stanford's wrists and asked what he was doing. Stanford responded, "You know what you did, motherf_____." McGee did not personally know Stanford and did not know what he was talking about.
McGee struggled with Stanford to try to get him off his neck. Stanford escaped from McGee's handgrip, and then stabbed McGee in the shoulder, stating, "That hurt, didn't it? You're getting weak, motherf_____." Stanford then stabbed McGee twice in the right side of his neck near his jugular vein. McGee testified the stabbing was not accidental, and during the stabbing he felt he could die.
As McGee continued to struggle, he managed to grab the knife from Stanford and stand up. Stanford tried to hit McGee, and McGee lunged toward Stanford to try to stab him with the knife. Stanford then grabbed a mirror standing on a countertop, smashed the mirror on the countertop, and approached McGee with a shard of the mirror glass. McGee ran out of the mobile home. He fell down, "kind of black[ing] out" from the blood loss, and then got back up and went to a neighbor's home. The neighbor called 911.
McGee was under observation in the hospital for two and one-half days. He did not require stitches or surgery. He has scars on his neck from the stab wounds.
McGee testified that at first he did not recognize Stanford. Later, he thought (but was not sure) that he had seen Stanford from a distance a couple of days prior to the attack, talking with a group of people (including Arias) on the porch of his neighbor Lynn's home. McGee stated that he had known Arias years ago.
During the time while Stanford was gone from Lynn's residence on August 11, Arias heard yelling, screaming, and the sound of glass breaking. Arias went outside to investigate, and saw Stanford running from McGee's residence, looking angry and like "a madman." Arias knew McGee when they lived in the same apartment complex in Murrieta. Arias testified he had "no problem" with McGee, and as far as Arias knew neither did Stanford. As Stanford ran toward Arias, Arias felt afraid because it appeared that Stanford did not recognize him and that Stanford was going to do something to hurt him. After Arias was able to get Stanford to recognize him, Stanford told Arias that they needed to leave. Arias drove them to Arias's home in Temecula. During the drive Stanford hugged himself, rocked back and forth, and talked to himself. Stanford left Arias's home in a taxi during the middle of the night. The next day (Thursday, August 12) Arias talked to Stanford and Stanford acted normal and as if nothing had happened.
Killing of Frink
On Friday, August 13, 2004, the day of the killing, Stanford and Frink arrived at the Stanford home around 5:30 a.m. They greeted Stanford's father and then went upstairs to Stanford's room. Stanford's father left for work shortly after their arrival. Stanford's mother noticed that Stanford was acting paranoid and emotional and appeared to be under the influence of drugs. At one point, after there was a loud clap of thunder, Stanford ran outside and changed the combination lock on the garage door to a padlock with a key, telling his mother that he thought he heard someone "coming through the garage." Stanford's mother asked Stanford and Frink if something was wrong and they told her everything was fine.
At about 7:30 a.m., Stanford's mother telephoned her husband and told him Stanford and Frink were still at the house. Although the parents had some concerns that Stanford might steal things, they discussed the matter and decided that Stanford's mother would go to work and they would let Stanford and Frink stay at the house.
Frink's friend, Vincent Boyd, received a call from Frink from her cell phone at 12:37 p.m. on August 13. According to Boyd, Frink sounded worried. She told Boyd that Stanford was "tripping" and she might need a ride. She told Boyd not to worry or come over and she would call him back if she needed the ride.
Boyd testified that he interpreted her reference to "tripping" to mean that Stanford was "flipping out," was acting "crazy," or was "pissed off" or angry.
A few minutes later, at 12:43 p.m., Stanford's friend Arias received a call from Stanford on Arias's cell phone. Arias testified that Stanford told him that he was in trouble because Frink's " 'homeboys' " were coming to kill him. Stanford sounded frightened and he wanted Arias to come over and "get him out of there." Arias heard Frink yelling in the background, stating "F___ you, punk. F___ you. You're f___ing dead. My homeboys are on their way, and they're going to f___ing kill you. . . . F___ you, motherf_____. Your baby is dead."
The Stanford's next door neighbor testified that sometime between 12:30 and 1:00 p.m. on August 13, she went outside to her mailbox. She noticed that the Stanford's garage door was open and there were no vehicles in the garage, which seemed unusual to her. She heard a "faint kind of shallow howl" a couple of times that sounded like an injured animal. She looked briefly at the Stanford's garage and yard to see if there was an injured animal, but then the noise stopped.
Stanford killed Frink sometime between 12:37 p.m. (when Frink called Boyd) and 1:15 p.m. (when Stanford called 911). Frink's body was found by the police in an upstairs bedroom of the Stanford residence. She was partially clothed, wearing a t-shirt, and lying facedown (apparently on the floor). There was a bayonet in her back and a knife between her legs. The knife between her legs had blood on it and looked as if someone had positioned it there.
At trial, Stanford's father (Keith) identified the knife that was found between Frink's legs. Keith testified that the knife was ordinarily kept in his toolbox in the garage. However, his sons commonly took tools out of his toolbox and did not return them; he had not opened the toolbox for several months; and he did not remember the last time he had seen the knife before the killing. Regarding the bayonet, the police found a sheath for a bayonet on the downstairs kitchen counter.
The garage was attached to the house and accessible from the outside through a lift-up door and from the inside through a laundry room door.
There was no testimony regarding where the bayonet was located prior to the killing.
Based on blood patterns and locations, the police believed that Stanford attacked Frink in the upstairs hallway, dragged her into the bedroom, and continued the attack in the bedroom. There was blood by her body, on the bedroom floor, wall, and door, on a portable fan in the bedroom, and on the wall outside the bedroom. In the hallway area outside the bedroom, there was blood on the carpet and walls and on a stairway post.
When Stanford called 911, he told the operator that he tried to clean up after the killing. The crime scene reflected his efforts. There was a Dirt Devil carpet cleaner in the hallway with blood inside, various cleaning supplies on the counter in the bathroom, and a jar which appeared to contain cleaning liquid on the floor by the bathroom door. There was a rubber glove and a sock with blood on it in the bedroom where Frink's body was found. No fingerprints were found on the knives; the police believed the knives had been wiped clean.
In the home of a neighbor who shared a backyard fence with the Stanfords, the police found a bloody t-shirt and a sheath that matched the knife between Frink's legs. There was evidence that someone had gone through a bedroom window in the neighbor's home and there were bloody foot prints in the neighbor's kitchen. The police surmised that after the killing Stanford went to the neighbor's home and deposited the t-shirt and knife sheath.
Sometime between 12:43 p.m. (when Arias received the call from Stanford requesting assistance) and 1:15 p.m. (when Stanford called 911), Arias arrived at the Stanford residence. Frink had already been killed when Arias arrived. Stanford was standing outside by the front door, appearing as if he "was losing it." The front door was locked and Stanford did not have a key. Stanford and Arias searched for a way to enter the house and ultimately Stanford climbed through a bathroom window. When they were in the house, Arias noticed blood on Stanford's sock. Stanford was "running in circles," moving quickly, sweating, and appeared to be under the influence of drugs. They went upstairs and Arias saw Frink with a knife in her back. Arias told Stanford that he should call 911. When Arias saw Stanford pick up the phone, Arias left the house.
The police investigation of the scene corroborated an entry through the bathroom window; i.e., the window screen was off, there were footprints in the dirt beneath the window, and there was dirt on the bathroom floor by the window.
Stanford called 911 at 1:15 p.m. on August 13. Stanford told the operator that he thought he murdered his girlfriend; that he woke up and there was blood all over him and he had a knife in his hand; that his girlfriend had been stabbed "[e]verywhere"; that she was upstairs and he was downstairs; and that there was a knife upstairs and "a bigger knife in . . . her back still." Stanford stated that he had panicked and tried to clean everything up, but that he didn't know what to do. Stanford asked for help and to please hurry.
When the police arrived at the residence after the 911 call, the garage door was closed. Stanford was sitting in the dining room smoking a cigarette. He had blood on his socks, shirt, shorts, and arm. When the police told him to lie on the ground, he put the cigarette out on the carpet. He appeared calm and cooperated with the arresting officers. He had some abrasion-type scratch marks on his arm and knee or leg.
In the bedroom where Frink was found, the police found two pipes used for smoking methamphetamine, a film canister containing methamphetamine on the floor, and methamphetamine in Frink's purse.
Corporal Steven Lang evaluated Stanford for drug use and concluded he was under the influence of a stimulant drug such as methamphetamine. At the time of his arrest at his parents' residence, he was breathing extremely heavily and rapidly and sweating profusely. Stanford told Corporal Lang that he had used marijuana and "speed." When Corporal Lang evaluated Stanford at the police department about two hours later, he exhibited numerous physical symptoms consistent with methamphetamine use. Stanford was angry and very agitated, and at one point tried to escape through a partially open cell door.
Stanford's symptoms included slow pupil reaction to light, enlarged pupils, bloodshot eyes, full exposure of the white portions of the eye, and eyelid tremor; dry, white pasty mouth and bruxism (teeth clenching); a foul chemical odor from his breath and sweat; red and sweaty face; elevated pulse over a period of time; inflamed nostril; anger, agitation, fidgeting, and stiff, robotic movements.
At the local detention facility at about 8:00 p.m., Stanford was still agitated and was yelling and swearing at the intake officers. He told the officers, " 'Don't take the cuffs off or I'm gonna do something.' " At times he calmed down, but then would become agitated again. When his handcuffs were removed as part of the intake process, he clenched his fists and kicked one of the officers. The officers took him to the ground, got control of him, and placed him in a "prostraint" chair in a safety cell to prevent him from moving. At about 9:30 p.m., while he was in the cell, he loudly blurted out: "I killed her. So what. What are you guys going to do?" At about 10:46 p.m., he yelled out from the cell in a sarcastic tone of voice, "I'm sorry I killed the f___ing girl. Okay. I did it."
Autopsy Results
Dr. Mark McCormick, who performed an autopsy on Frink's body, testified that Frink suffered 26 stab or cutting wounds to the head and neck region, torso, and extremities. She died from exsanguination (blood loss) due to multiple stab wounds. The bayonet was stuck into her spinal column and created a wound about five and one-half inches deep. Dr. McCormick testified that "a fairly strong thrusting action or stabbing action" was required to put the bayonet into her back. There were cutting and stab wounds on her forehead, chin and neck. There were wounds on both sides of her neck. A one and one-half inch deep wound on the left side of her neck reached the carotid artery. There were three-to-six-inch deep wounds on her torso and back that reached the heart, both lungs, and the spinal column. There were wounds in her shoulder and armpit region that were about three inches deep. There was evidence of defensive wounds on her fingers and hand. There was no evidence that she had been pregnant or had an abortion.
Dr. McCormick testified that the wounds that reached the carotid artery or the heart could alone have caused death, but the death would not be instantaneous because the wounds were not inflicted on the brain stem or directly into the chambers of the heart. These wounds would have taken some time to cause exsanguination and death. Dr. McCormick opined that the bayonet could not have caused all the stab wounds. He explained that some of the wounds were small in size on the skin but deep, and if the bayonet had been used for these wounds it would have created a wider wound on the surface. He further opined that given the different locations of the wounds, it would be difficult for all the wounds to be inflicted while Frink was in one position, and the wound locations were more consistent with Frink being in multiple positions as she was being stabbed. There were four wounds (on the hand, chin, forehead, and neck) that were wider on the surface than they were deep. These wounds could have been created with a slicing motion, or with a stabbing motion directed at a victim who was moving around.
Expert Evidence Regarding Effect of Methamphetamine Use on Mental State
Toxicologist Maureen Black and psychiatrist Theodore Williams testified for the defense. Black testified that Stanford's blood test results showed he had used methamphetamine in the hours before the killing, and that his levels were slightly higher than the average abuser's level but not "astronomically" or uncommonly high. Black and Dr. Williams testified after the initial euphoria wears off, a methamphetamine user can become hostile, irritable, and impulsive, which can lead to violent situations. Chronic use can cause paranoia, hallucinations, and psychosis.
Black opined that a person with the level of methamphetamine in Stanford's blood would suffer some mental impairment. Dr. Williams opined that at the time of the killing Stanford was suffering from a psychotic disorder based on the intoxicating effects of methamphetamine. Assuming the truth of Frink's alleged provocative and threatening statements and the other facts involved in this case, Dr. Williams believed that a person with Stanford's history would be expected to have experienced an immediate sense of danger and emotional disturbance, causing him to react impulsively, with a sudden explosion of violence, without preplanning or deliberation, and without an awareness of his actions until later.
To support a defense based on intoxication, the defense called Colonel Lang to testify regarding the symptoms Stanford was exhibiting at the time of his arrest. The defense examination of Colonel Lang focused on Stanford's physical manifestations of intoxication. On cross-examination the prosecution, over defense objection, elicited opinions from Colonel Lang relevant to Stanford's mental state. Colonel Lang opined that a person under the influence of methamphetamine can think about things beforehand, make decisions, and form an intent to kill. He also testified that although methamphetamine users can be prone to lose their temper and enter a methamphetamine-induced rage, they still know what they are doing but "[t]hey don't care." Colonel Lang testified that Stanford seemed to understand most of the questions he was asked and to think about his answers or whether he wanted to answer; that he showed good time orientation; and that he did not exhibit symptoms suggesting delusions, psychosis or paranoia.
Stanford's Statements Several Months After the Killing
On October 9, 2004, the jail recorded a phone conversation between Stanford and Arias while Stanford was in jail. During this call, Stanford stated that he had not told anyone why he killed Frink and that is why he wanted to talk to his lawyer. When Arias stated that people were telling him it was because Frink was pregnant, Stanford interjected "[t]hat wasn't even my kid." During the phone conversation, Arias also commented that the coroner's report showed Frink was never pregnant. Stanford expressed surprise and doubt about the accuracy of this latter statement.
This portion of the conversation was as follows: "[Arias]: She wasn't pregnant." [¶] "[Stanford]: What? She wasn't?" [¶] "[Arias]: No. [¶] . . . [¶] I saw the coroner report." [¶] "[Stanford]: No, yeah, not at that point." [¶] "[Arias]: She wasn't before either." [¶] "[Stanford]: Oh, I don't know, dude."
In an October 13, 2004 recorded jail phone conversation, Stanford's mother asked Stanford if he had been in a fight with Frink before the killing. Stanford responded: "No. I don't even know why I did it. All right?"
Jury's Verdict
Stanford was charged with first degree murder of Frink and premeditated attempted murder of McGee. In defense, Stanford claimed he was guilty of only manslaughter and attempted manslaughter, based on the evidence of intoxication and psychosis. Regarding victim Frink, he also raised defenses of heat of passion from the victim's provocation and fear of imminent peril.
The jury rejected the first degree murder allegation regarding Frink, finding Stanford guilty of second degree murder. The jury found Stanford guilty of premeditated attempted murder of McGee, but found untrue an allegation that he personally inflicted great bodily injury on McGee.
DISCUSSION
I. Exclusion of Evidence of Victim Frink's Methamphetamine Use At the Time of the Killing
Stanford argues the trial court erred by excluding evidence of Frink's toxicology results showing she was under the influence of methamphetamine at the time of the killing. He contends the court's ruling deprived him of his right to fully present a heat of passion defense to support a voluntary manslaughter verdict.
A. Background
Prior to trial, the prosecutor moved to exclude toxicologist Black's findings that showed Frink had methamphetamine in her blood. Opposing exclusion, defense counsel argued Frink's toxicology results were relevant to support the defense claim that Frink made statements to Stanford (i.e., her "homeboys" were coming to kill him and his baby was dead) which precipitated the killing, and which would negate premeditation and deliberation and also support a voluntary manslaughter verdict. Defense counsel noted that the prosecutor claimed that Frink did not make the statements, and that the prosecutor intended to attack the credibility of the witness (Arias) who claimed to have heard the statements.
The prosecutor asserted there was no showing that methamphetamine use would cause a person to make such statements, and that any minimal probative value was outweighed by the prejudicial effect of characterizing the victim as a drug user. In response, defense counsel argued that the experts would testify that the use of methamphetamine can lead to agitation, anger, misperceptions, impulsivity and violent outbursts; the toxicology evidence would corroborate Arias's claims that Frink made the statements; and the defense was not seeking to depict Frink as an addict but merely to present the fact that Frink, as well as Stanford, was under the influence of methamphetamine at the time of the killing. The prosecutor retorted that although there would be expert testimony regarding the effects of methamphetamine use on Stanford based on his medical history, there was no such specific information regarding the effect that methamphetamine would have had on Frink, and thus the defense assertion of relevancy was speculative.
The trial court excluded the evidence under Evidence Code section 352. The court reasoned that although the toxicology evidence had some probative value, the jury would be presented with the defense evidence that the victim made the statements, and the prejudicial effect of the jury knowing the victim was under the influence of methamphetamine outweighed the probative value.
B. Legal Principles
For reasons we shall explain, we conclude the trial court erred in excluding the evidence of Frink's toxicology results, but that the error was not prejudicial. Because the jury found Stanford guilty of second degree murder and rejected first degree murder, our prejudice inquiry focuses on whether it is reasonably probable the jury would have reached a voluntary manslaughter verdict had it heard the omitted toxicology evidence. To facilitate our review of this issue, we first summarize principles pertinent to the gradations of culpability for an unlawful killing, and then summarize the law governing exclusion of defense evidence.
An unlawful killing with malice aforethought, premeditation, and deliberation constitutes first degree murder, whereas the absence of premeditation and deliberation reduces the crime to second degree murder. (People v. Bohana (2000) 84 Cal.App.4th 360, 368.) Premeditation and deliberation may be negated by such factors as heat of passion or intoxication so as to reduce the crime to second degree murder. (People v. Wickersham (1982) 32 Cal.3d 307, 329-330, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201; People v. Castillo (1997) 16 Cal.4th 1009, 1013-1016.) A killing may further be reduced to voluntary manslaughter when the absence of malice is shown by heat of passion arising from provocation by the victim that would cause a reasonable person to react with deadly passion, or an unreasonable but good faith belief in the need to act in self-defense. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144; People v. Lasko (2000) 23 Cal.4th 101, 108.)
Provocation that causes a heat of passion killing can be relevant to both second degree murder and voluntary manslaughter; however, the quality of the provocation differs as between these two levels of homicide. The provocation to eliminate malice for voluntary manslaughter must be sufficient to arouse deadly passion in the average person, whereas provocation for second degree murder only requires that the defendant be subjectively precluded from deliberating or premeditating. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296.)
For voluntary manslaughter, both provocation and actual heat of passion must be demonstrated. (People v. Gutierrez, supra, 28 Cal.4th at p. 1143.) "It is not enough that provocation alone be demonstrated. There must also be evidence from which it can be inferred that the defendant's reason was in fact obscured by passion at the time of the act." (People v. Sedeno (1974) 10 Cal.3d 703, 719, disapproved on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 165.) The violence must occur " 'suddenly as a response to the provocation, and not belatedly as revenge or punishment.' " (People v. Daniels (1991)52 Cal.3d 815, 868.) A calculated manner of killing can negate an inference that the defendant acted in an unconsidered explosion of violence. (See People v. Pride (1992) 3 Cal.4th 195, 248.)
A defendant's constitutional right to present a defense requires admission of all " 'relevant and material' " evidence. (People v. Babbitt (1988) 45 Cal.3d 660, 684.) A trial court's discretionary power to exclude evidence under Evidence Code section 352 "must yield to a defendant's due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense." (People v. Cunningham (2001) 25 Cal.4th 926, 998-999.) A trial court's discretionary ruling under Evidence Code section 352 will not be disturbed unless the court acted in an "arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice[.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Evidence Code section 352 provides for exclusion of evidence when "probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
When a trial court's erroneous exclusion of defense evidence completely prevents the defendant from presenting a defense, the error may violate due process and require application of the harmless beyond a reasonable doubt standard of review. (People v. Cunningham, supra, 25 Cal.4th at p. 999; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) In contrast, if the exclusion merely constitutes a rejection of some evidence concerning a defense, the error is governed by the reasonable probability of a more favorable outcome standard used for state law error. (Cunningham, supra, at p. 999; Fudge, supra, at pp. 1103-1104.)
C. Analysis
Stanford argues that Frink's toxicology results showing her methamphetamine use were relevant to prove the defense theory that the killing was voluntary manslaughter because of Frink's provocative and threatening statements. We agree. Frink's methamphetamine use on the day of the killing was a relevant factor for the jury to consider when deciding whether she made provocative or threatening statements.
The experts testified extensively regarding the effects of methamphetamine use, and all agreed that the user can become hostile, irritable, and agitated. Based on this expert testimony, both Stanford's and Frink's use of the methamphetamine on the day of the killing was relevant for the jury to consider when evaluating Stanford's level of culpability. Stanford's methamphetamine use was pertinent to the issue of his state of mind at the time of the killing, and Frink's methamphetamine use was pertinent to her conduct at the time of the killing that may have impacted Stanford's state of mind. The fact that Frink was under the influence of methamphetamine was relevant to support the defense theory that she acted in a hostile manner and provoked the killings.
Although the jury heard testimony from Arias that Frink made provocative and threatening statements at the time of the killing, the prosecution had evidence to attack Arias's credibility, including his criminal record and statements he had made indicating he was trying to assist Stanford in devising ways to avoid a long prison sentence. Given the prosecution's forceful attack on Arias's credibility, the defense was entitled to present evidence that would support its claim that Arias was telling the truth about Frink's statements.
A trial court has wide discretion to weigh probative value against the potential for prejudice. However, when balancing these matters the court must give careful consideration to the defense right to present evidence of significant probative value. Frink's methamphetamine use, which could have engendered hostile behavior on her part on the day of the killing, had significant relevancy to the voluntary manslaughter defense. Moreover, the record does not suggest that there was a high risk of undue prejudice. The toxicology results were a relatively brief item of evidence that did not involve an extensive portrayal of the victim's "bad character" that in another context might reasonably be deemed unduly prejudicial.
Even though a court may properly exercise its discretion to exclude evidence of drug use " 'that merely makes the victim of a crime look bad' " (People v. Hillhouse (2002) 27 Cal.4th 469, 496), here the purpose of presenting the victim's toxicology results was to support a defense theory of voluntary manslaughter. This was an important matter for the defense, and it did not raise serious prejudice concerns. We conclude the trial court abused its discretion in concluding prejudice outweighed probative value.
Although the trial court erred, its exclusionary ruling did not completely prevent Stanford from presenting his defense based on the theory that he killed Frink in response to her provocative and threatening statements. Thus, we review the error under the reasonable probability of a more favorable outcome standard. (People v. Cunningham, supra, 25 Cal.4th at p. 999.)
The jury's second degree murder verdict reflects that it found Stanford did not engage in premeditation and deliberation when he killed Frink. Given this conclusion, the question is whether the toxicology evidence was of such significance that its exclusion creates a reasonable probability that the jury would have found the offense to be voluntary manslaughter instead of second degree murder based on a heat of passion defense. We conclude there is no such reasonable probability.
The jury was also instructed on first degree murder by torture, and rejected this allegation.
On appeal, Stanford does not argue that the facts support an unreasonable self-defense theory of voluntary manslaughter.
First, the jury was presented with circumstantial evidence that Frink was a methamphetamine user. The jury knew that the police found methamphetamine in Frink's purse and two methamphetamine pipes in the bedroom. Although the jury was not presented with the toxicology results showing Frink's methamphetamine use on the day of the killing, we are satisfied the jury reflected on the significance of the drugs and drug paraphernalia and likely surmised that Frink used methamphetamine.
Second, the jury was presented with the defense evidence that Frink made provocative and threatening statements that could support a voluntary manslaughter verdict. The admission of Frink's toxicology results would not have directly corroborated that she made the statements, but would only have provided a basis to indirectly infer that she was hostile that day and that she made statements consistent with that level of hostility. Thus, the toxicology results did not constitute direct corroborative evidence of provocation, but merely consisted of ancillary evidence that could have, but did not necessarily, support the provocation evidence.
Third, the facts show a gruesome, prolonged killing that strongly negates an inference that Stanford's conduct was solely a response to provocation. Stanford used two knives during the attack; a fact which suggests the killing was not a sudden, responsive, unconsidered act. Regardless of where the two knives were located, at some point during the course of the killing Stanford had to make a decision to use a second weapon. Further, the evidence suggested the attack occurred in both the hallway and the bedroom and that Frink was in multiple positions while she was stabbed 26 times on her front and her back. Even assuming Stanford was operating under reasonably-provoked passion when he first attacked Frink, the prolonged, multi-faceted nature of the attack seriously diminishes an inference that as the attack continued Stanford's conduct was confined to such an unconsidered explosion of violence. Although the jury was not persuaded that Stanford engaged in deliberation and premeditation, there is a high likelihood that it was persuaded that the killing was too elaborate and drawn out to be based solely on immediate passion.
In sum, the jury was presented with evidence suggesting Frink was a methamphetamine user, was provided the most crucial evidence relevant to a voluntary manslaughter defense, and was deprived of merely ancillary, indirectly corroborative evidence. Further, assuming there is a reasonable probability the jury would have concluded Frink made a provocative or threatening statement had it known of the toxicology results, the nature of the killing strongly detracts from a finding that Stanford's reaction to these statements was restricted to sudden passion. Viewing the record in its totality, there is no reasonable probability that the presentation of Frink's toxicology results showing methamphetamine use would have persuaded the jury to reduce the offense to voluntary manslaughter.
II. Admission of Colonel Lang's Opinions about a Methamphetamine User's Mental States
Stanford called Colonel Lang as a defense expert, but now complains that he was not qualified to answer some of the questions asked by the prosecution during its cross-examination. Specifically, Stanford argues the trial court erred in allowing Colonel Lang to opine that a person under the influence of methamphetamine can form an intent to kill, know what he or she is doing, and think about things beforehand. Stanford asserts that Colonel Lang was not qualified to render opinions about a methamphetamine user's ability to form these mental states.
A trial court has considerable latitude in deciding whether a witness has sufficient knowledge, skill, experience, training or education to qualify as an expert. (People v. Denney (1984) 152 Cal.App.3d 530, 546-547 (Denney).) The court's ruling will not be disturbed on appeal unless there was a manifest abuse of discretion. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.)
Police officers are frequently recognized as experts on narcotic abuse. (Denney, supra, 152 Cal.App.3d at p. 547.) The officer's testimony is typically limited to information regarding the identification of drug abusers or their typical behavior patterns. (Ibid.; see, e.g., People v. Diaz (1989) 212 Cal.App.3d 745, 748 [based on his training and experience, officer testified that PCP users are able to form and carry out a plan].) Absent special training or experience, an officer's expertise does not normally extend to matters requiring medical expertise. (See, e.g., Denney, supra, at p. 547 [officer was not qualified to testify regarding the physiological effect of combining alcohol and heroin use].)
Corporal Lang testified that he has been a police officer for 26 years, the focus of his career has been in the area of narcotics, and he has arrested numerous people under the influence of drugs. He has had about 2,000 hours of advanced training in the area of narcotics and influence, and is an expert on the manufacture of methamphetamine. Additionally, he has taken advanced interrogation classes, has hostage negotiation training and experience, and has conducted interviews and had contact with hundreds or thousands of suspects under the influence of drugs, including methamphetamine. Colonel Lang acknowledged that he did not have formal medical training in such areas as psychiatry, addiction medicine, or the effects of methamphetamine on a person's health.
Colonel Lang's extensive experience and training in the area of narcotic use provided a reasonable basis to qualify him as an expert regarding matters he had learned about or observed regarding methamphetamine users. Even without formal medical training, the trial court could reasonably find that Colonel Lang's experience with methamphetamine users provided him with the requisite expertise to testify about their mental states. Based on Colonel Lang's extensive contacts, interviews and interactions with numerous persons under the influence of methamphetamine who committed crimes, the trial court could reasonably assume that he has acquired considerable insight as to whether they acted with intention, awareness, and reflection even though they were intoxicated.
We conclude the trial court did not abuse its discretion in finding Colonel Lang qualified to testify regarding the mental states of methamphetamine users. The jury was, of course, free to determine the appropriate weight to give his opinions on mental state given his background. " ' "Where a witness has disclosed sufficient knowledge of the subject matter to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility." ' " (People v. Bolin, supra, 18 Cal.4th at p. 322.) As noted, Colonel Lang acknowledged his lack of formal medical training. Additionally, the defense presented testimony from psychiatrist Williams questioning the accuracy of some of Colonel Lang's opinions on mental state. The jury was instructed that it was not bound by an expert's opinion, and that it should determine what weight to give the opinion based on a consideration of various factors including "the qualification[s] . . . of the witness." (See CALJIC No. 2.80; Pen. Code, § 1127b.)
The trial court did not act unreasonably in concluding Colonel Lang was sufficiently qualified to present his opinions on a methamphetamine user's mental states, subject to the jury's right to discern what weight to afford his opinions.
III. Substantial Evidence of Premeditated Attempted Murder of McGee
Regarding victim McGee, Stanford argues there is insufficient evidence to support findings (1) that he committed attempted murder, and (2) that his conduct was willful, deliberate, and premeditated.
In evaluating the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably justify the trier of fact's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)
A. Attempted Murder
An attempt to commit a crime requires " 'a specific intent to commit itand a direct but ineffectual act done towards its commission, i.e., an overt ineffectual act which is beyond mere preparation and yet short of actual commission of the crime.' " (People v. Imler (1992) 9 Cal.App.4th 1178, 1181.) Attempted murder requires the specific intent to kill an intended victim. (People v. Bland (2002) 28 Cal.4th 313, 327-328.) Because intent is inherently difficult to prove by direct evidence, intent may properly be inferred from " 'the act itself, together with its surrounding circumstances . . . .' " (People v. Edwards (1992) 8 Cal.App.4th 1092, 1099; see People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
Mere intention and preparation to commit a crime do not suffice to show an attempt. (People v. Miller (1935) 2 Cal.2d 527, 530.) " '[T]he attempt is the direct movement towards the commission after the preparations are made. . . . Therefore the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation.' [Citation.] 'There must be some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.' " (Ibid.)
Stanford argues that the record merely shows the crime of assault with a deadly weapon, not attempted murder, because his acts were equivocal, did not show a definite attempt to kill McGee, and merely showed an intent to frighten and batter, not to kill. To support this contention, he asserts that he could have, but did not, immediately stab the sleeping McGee when he jumped on him; when he did stab McGee, McGee was not seriously injured; and he illogically tried to hit McGee when McGee had the knife. The argument is unavailing. Even assuming that Stanford did not engage in a direct act towards killing McGee when he held the knife to his throat, the jury could reasonably find he engaged in such conduct when he deliberately stabbed McGee twice in the neck near the jugular vein. The fact that the stab wounds to McGee's neck ultimately turned out, in the jury's view, not to constitute great bodily injury did not prevent the jury from inferring that this conduct was a direct step towards killing and that Stanford intended to, and would have, ultimately killed McGee had McGee not grabbed the knife and fled from his home. Stanford's act of aggression against McGee with the glass shard after he lost the knife further buttresses an inference that he was attempting to kill McGee. The fact that Stanford tried to hit McGee while McGee had the knife may reflect Stanford's lack of good judgment, but it does not defeat the inference that he intended to kill McGee.
The record supports the jury's finding of attempted murder.
B. Premeditated Attempted Murder
Stanford argues the record cannot support the jury's finding of a willful, deliberate, and premeditated attempted murder because the evidence showed he was under the influence of methamphetamine, he did not immediately stab McGee when he jumped on him, and the entire incident happened quickly. Further, Stanford asserts there is no evidence he engaged in planning activity, that he had a motive, or that he attacked the victim in an exacting manner.
Deliberation and premeditationrequire a level of reflection greater than that required to merely form the intent to kill. (People v. Anderson (1968) 70 Cal.2d 15, 26.) To establish deliberation and premeditation, the intent to kill must be formed upon a preexisting reflection and result from careful thought and weighing of considerations. (Ibid.) Planning, motive, and an exacting method of attack are factors which can assist in the determination of deliberation and premeditation; however, these factors are not a prerequisite to a deliberation and premeditation finding, nor are they exclusive. (People v. Perez (1992) 2 Cal.4th 1117, 1125.) Deliberation and premeditation can occur in a brief period of time. (Id. at p. 1127.) "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . [distinguishing] those homicides . . . which are the result of mere unconsidered or rash impulse hastily executed." (People v. Thomas (1945) 25 Cal.2d 880, 900-901.) Even a senseless, random homicide or attempted homicide can be deliberate and premeditated. (See People v. Thomas, supra, 2 Cal.4th at p. 519.)
The record shows that Stanford went to McGee's residence armed with a knife, which can support an inference that he engaged in some planning activity. Stanford then placed the knife against McGee's throat. When McGee grabbed his wrists and asked him what he was doing, Stanford had the opportunity to reflect on his actions. Instead of stopping the attack, Stanford made a statement indicating he had a subjective motive to attack McGee because he thought McGee had somehow wronged him. Stanford then stabbed McGee in the shoulder and made a statement indicating he knew he was hurting McGee, which supports an inference of further deliberation. He then deliberately stabbed McGee twice in the neck, which supports an inference that he was attacking him in a calculated manner not just randomly piercing him during a struggle. Finally, he did not abandon the attack when McGee grabbed the knife, but tried to hit McGee and then smashed a mirror to create a substitute weapon. This latter conduct likewise supports a finding of reflection rather than unconsidered, rash conduct.
Given this evidence showing reflection, the facts that Stanford was under the influence of methamphetamine and that the attack occurred quickly did not require the jury to find there was no deliberation and premeditation. Further, the facts that Stanford did not immediately stab McGee, but then later did do so in a directed, nonaccidental manner, can support an inference of deliberation and premeditation rather than the contrary inference urged by Stanford. The record supports the premeditated attempted murder verdict.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J., IRION, J.