Opinion
E051180 Super.Ct.No. BLF003355
11-15-2011
THE PEOPLE, Plaintiff and Respondent, v. BRETT WAYNE STROSCHEIN, Defendant and Appellant.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant Brett Wayne Stroschein beat two housemates with a baseball bat for no apparent reason. One of the victims, Brandon Selph, died as a result. Defendant was charged with the first degree murder of Selph and convicted by a jury of second degree murder. (Count 1; Pen. Code, § 187, subd. (a).) He was also charged and convicted of assault with a deadly weapon by means of force likely to produce great bodily injury. (Count 2; § 245, subd. (a)(1).) The jury also found true an allegation that defendant personally used a deadly weapon within the meaning of sections 12022, subdivision (b)(1) and 1192.7, subdivision (c)(23). The court sentenced defendant to an aggregate prison term of 20 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the court prejudicially erred by failing to instruct the jury that it could find defendant guilty of involuntary manslaughter on the theory that he did not act with malice aforethought because of a mental disease, defect, or disorder. The People assert there was insufficient evidence to support such an instruction and, if there was, defendant cannot raise the argument on appeal under the doctrine of invited error. We reject the People's invited error argument and agree with defendant that the court erred in failing to instruct on involuntary manslaughter. However, because we conclude that the error is not prejudicial, we affirm the judgment.
II. FACTUAL SUMMARY
A. Prosecution Case
In November 2004, defendant lived with his mother, Brenda Stroschein, in a house on North Palm Drive in Blythe. Several friends of the Stroschein family also lived at the house, including victim Selph, Selph's girlfriend Erin Barnes, and Latisha Townsend. Townsend had one bedroom; Selph and Barnes shared another. Defendant had his own room.
For ease of reference and with no disrespect intended, we will refer to Brenda Stroschein by her first name.
Brenda testified that defendant was a "normal" child, but became withdrawn and depressed after his father died in 1999. Defendant was 14 years old at that time. Thereafter, he would refuse to go to school and talked about how he did not want to live. His bedroom was described by different witnesses as "torn up," "filthy," "dirty," and "disgusting." He would not bathe or change his clothes for months at a time, talked to himself, said he could see people walking through walls, believed the government was trying to control him, and said his head "was fucking with him." Other members of the household said they heard what sounded like conversations with multiple persons taking place in defendant's room with different voices, even though he was the only person in the room. Defendant loudly recited lyrics from rap songs and verses from the Bible. He would talk to himself in the front yard, yell at passersby, and kick and tear at the fence.
Although he was described as strange and odd, witnesses testified that he was never hostile toward Selph or others. Although he did not talk to others often, he was generally respectful when spoken to and responded in appropriate ways.
When he was 16 years old, he spent some period of time in juvenile hall, where he was evaluated by a psychologist and prescribed medication. While he was on the medication, his behavior improved. When he was released from juvenile hall at the age of 18, he stopped taking the medication and his behavior deteriorated. Brenda did not, however, feel that he was becoming a danger to himself or others.
Sometime within the week preceding November 23, 2004, Brenda saw defendant with a baseball bat tied to an extension cord hanging around his neck. Brenda thought this was strange, but did not think that anyone would get hurt.
A few days before November 23, 2004, Brenda informed her houseguests that she would be moving out of the house to live with her elderly mother and that the others would need to move. She told defendant that he could move with her if he took his medication and saw someone at a mental health facility. Defendant told her he would not go back to the mental health facility and that he was going to stay at the house.
At approximately 8:00 a.m. on November 23, 2004, Brenda learned that defendant had carved the word "fuck" into a microwave oven and stuck a steak knife in the oven's clock. Brenda confronted defendant about the incident, which he denied. Defendant asked Brenda for a cigarette. Brenda told him no, and that she was going to have to use cigarette money to pay for a new microwave oven. Defendant became angry and went to his room. Brenda left the house at approximately 8:45 a.m.
Brenda returned at approximately 2:45 p.m. She went into Barnes's bedroom and talked with Barnes. Brenda and Barnes heard banging noises coming from defendant's room that sounded to Brenda like an aluminum bat hitting the wall. Brenda walked into defendant's room and saw defendant with a baseball bat in his hand and holes in the wall. Brenda told defendant, "Oh, my God, not in my house. Get out of my house."
Defendant looked at Brenda and approached her with the bat held up, "as if he was going to hit a baseball." According to Brenda, he looked like he was looking through her, and she "felt that something wasn't right." She ran back to Barnes's room and locked the door. She told Barnes that defendant was coming and that he had a look that she had never seen before.
Defendant banged on the bedroom door. Townsend, who had been in her room with Selph, came out of her room and asked defendant what he was doing. Defendant turned toward Townsend. He was, according to Townsend, sweating and breathing heavily, and "[h]is eyes were almost piercing." Defendant swung the bat at Townsend, hitting her in the arm and the back of her head.
Selph asked defendant, "What the fuck are you doing?" Defendant then entered Townsend's room and began swinging the bat at Selph. Selph initially used a computer monitor as a shield. Defendant hit the monitor with the bat, knocking it to the ground and shattering it. Selph was in a corner of the room and could not get away. Defendant struck Selph repeatedly on his head and body with the bat.
Townsend jumped on defendant's back and yelled, "[s]top, you're killing him." Defendant held her back with one hand and struck her again with the bat, causing her to lose consciousness.
A short time after the incident, police apprehended defendant about one-half mile from the Stroschein house. A blood-stained baseball bat was found in a dumpster a few houses away from the house.
Selph and Townsend were taken to the hospital for treatment. A friend of Townsend's, Theresa Macias, also went to the hospital to be with them. Macias and Townsend saw defendant being escorted through the hospital by police officers. Macias testified that defendant was "walking with his little strutting walk." Defendant looked over at her and Townsend with a "very evil" smile, or "smirk," on his face and snickered or chuckled.
Selph died later that day as a result of the injuries he suffered in the attack.
Police officers involved in defendant's arrest testified that defendant was cooperative, complied with their requests, did not resist, and did not act unusual or strangely in any way. One arresting officer testified that defendant did not need to be evaluated under Welfare and Institutions Code section 5150 because he did not suspect that he had a mental psychosis that would make him a danger to himself or others.
Deputy Sheriff Jason Green transported defendant from the police station to Palo Verde Hospital "for an okay to book" examination. Defendant understood Deputy Green's questions and complied with Deputy Green's commands. According to Deputy Green, defendant was "docile, cooperative. There was no tension. He wasn't hostile in any way."
An "okay to book" was described as an examination where a prisoner is physically examined and evaluated to determine whether the prisoner needs treatment prior to booking.
Dr. Robert Strecker performed the prebooking examination of defendant. Dr. Strecker testified that defendant "appeared to be normal"—"He knew who he was, where he was, what the date was." He appeared to be in control of his physical and mental faculties, and did not appear disoriented in any way. Dr. Strecker determined defendant was "okay to book." Deputy Green described defendant as "[e]xtremely cooperative" at the hospital and cooperative on the way back to the police station. B. Defense Case
Dr. Michael Kania, a clinical forensic psychologist, testified for defendant. According to Dr. Kania's review of defendant's medical records, defendant had been diagnosed with schizophrenia prior to November 2004. The condition, he said, "is one of the more severe psychological disorders." The schizophrenic's "perceptions of reality are all altered. They may be hearing voices that no one else hears. They may be acting upon that or acting in response to that. They might be seeing things, people, or animals that other people don't see. Their thinking is disorganized." They may suffer from delusions and talk to themselves in response to auditory hallucinations.
Dr. Kania opined that defendant's behavior leading up to the killing of Selph was consistent with schizophrenia. It "is possible," he said, that defendant's schizophrenia would affect defendant's ability to premeditate and deliberate. Dr. Kania was also asked whether defendant's "mental illness affected the mental state of premeditation and deliberation, malice aforethought, the intent to kill?" He responded: "It certainly may with individuals who suffer from schizophrenia. . . . [T]hey may be responding to other things, to voices that they are hearing. They may also be acting impulsively. They may be unaware of certain things around them. Or they may be responding to thoughts that they are having that makes it difficult for them to think about what they are doing, to reflect upon it, to give any thought to the consequences of those issues that a person not suffering from those symptoms would be able to do." C. Rebuttal Case
Dr. Kania could not be asked whether defendant had actually formed the intent to kill. Under section 29, during the guilt phase of a trial, "any expert testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states . . . . The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact." (§ 29; see also People v. Coddington (2000) 23 Cal.4th 529, 582, overruled on another point in Price v. Superior Court (2008) 25 Cal.4th 1046, 1069, fn. 13.)
Dr. Craig Rath testified for the prosecution. Dr. Rath interviewed defendant in February 2010, approximately three months prior to trial and more than five years after Selph was killed. Defendant told Dr. Rath he had stopped taking his medication approximately four months prior to the incident. Defendant admitting killing Selph and denied that Selph did anything to provoke him. Defendant denied experiencing any command or auditory hallucinations during the attack on Selph. He told Dr. Rath, "I didn't think about it. I just accidentally did it."
Dr. Rath stated that by placing the baseball bat in a dumpster after the killing, defendant exhibited "an awareness, a consciousness of what is transpiring. It demonstrates abstract reasoning ability." Defendant told Dr. Rath that he ran away from the scene of the killing because he was scared of what would happen, and he figured he probably would be arrested. This also indicates "thinking, reasoning, awareness, conscious[ness] of what is going on." Dr. Rath opined that defendant has an antisocial personality disorder. He explained that as a person with such a disorder gets older, "they act out against society, don't obey rules, lie, do all sorts of antisocial things, get into trouble with the law." Hitting someone with a baseball bat is "within the realm of aggression to people under the antisocial personality disorder[.]"
Dr. Rath agreed with Dr. Kania that schizophrenia is "a major illness" that "can sometimes affect a person's ability to premeditate and deliberate." Given a hypothetical based upon evidence in the case, Dr. Rath testified that the attacker would be able to premeditate and deliberate. He based this conclusion on the "extent of goal-directed behavior, the planning, the thinking that is going on, the lack of evidence of inference by psychotic symptoms would all play into that decision." Such a person, he explained further, could have formed the intent to kill.
Dr. Joseph Ezra is a psychiatrist at Patton State Hospital. According to Dr. Ezra, defendant has adult antisocial personality disorder. This is exhibited by a lack of respect for rules and for others, and acting impulsively without appropriately thinking.
III. ANALYSIS
The jury was given instructions based on CALCRIM Nos. 520 (Murder With Malice Aforethought), 521 (Murder: Degrees), 522 (Provocation: Effect on Degree of Murder), 570 (Voluntary Manslaughter: Heat of Passion—Lesser Included Offense), and 3428 (Mental Impairment: Defense to Specific Intent or Mental State) as it related to first and second degree murder. The jury was not instructed on involuntary manslaughter. As noted above, the jury returned a verdict of second degree murder.
The court gave the following instruction regarding mental impairment: "You have heard evidence that the defendant may have suffered from a mental disease, defect, or disorder. You may consider this evidence only for a limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state specifically, malice aforethought for murder in the first or second degree; premeditation and deliberation for murder in the first degree. [¶] If the People have not met this burden, you must find the defendant not guilty of murder."
Defendant contends the court erred in failing to sua sponte instruct the jury on involuntary manslaughter as a lesser included offense of murder. Specifically, he argues there was substantial evidence that he did not harbor malice aforethought due to a mental disease, defect, or disorder; in the absence of malice, defendant could be convicted of only involuntary manslaughter. The jury, he asserts, should have been given the option of rendering such a verdict.
The People contend defendant is precluded by the doctrine of invited error from challenging the trial court's failure to instruct the jury on involuntary manslaughter. Regarding the merits of defendant's argument, the People contend there is insufficient evidence to support the giving of an involuntary manslaughter verdict. We first address the issue of invited error. A. The Court's Sua Sponte Duty to Instruct on Lesser Included Offenses and the Doctrine of Invited Error
The parties do not dispute that the crime of involuntary manslaughter is a lesser included offense of murder. (See People v. Heard (2003) 31 Cal.4th 946, 981; People v. Parras (2007) 152 Cal.App.4th 219, 228.) Generally, a trial court must instruct the jury on lesser included offenses sua sponte "whenever evidence that the defendant is guilty of only the lesser offense is substantial enough to merit consideration by the jury." (People v. Halvorsen (2007) 42 Cal.4th 379, 414.)
"'The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to it being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]' [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 154-155 (Breverman).) This "prevents the 'strategy, ignorance, or mistakes' of either party from presenting the jury with an 'unwarranted all-or-nothing choice,' encourages 'a verdict . . . no harsher or more lenient than the evidence merits' [citation], and thus protects the jury's 'truth-ascertainment function' [citation]. 'These policies reflect concern [not only] for the rights of persons accused of crimes [but also] for the overall administration of justice.' [Citation.]" (Id. at p. 155.)
However, "a defendant may not invoke a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court's failure to give the instruction." (People v. Barton (1995) 12 Cal.4th 186, 198.) This doctrine, in the context of the duty to instruct as to lesser included offenses, will apply only when the record demonstrates a deliberate tactical purpose for objecting to or resisting an instruction or persuading a court not to give an instruction on a lesser included offense. (See People v. Wilson (2008) 43 Cal.4th 1, 16; People v. Beames (2007) 40 Cal.4th 907, 927; People v. Hardy (1992) 2 Cal.4th 86, 184.) Such a tactical decision might be made, for example, if the defendant believes that giving lesser included offenses are inconsistent with the defense that the defendant did not commit the crime at all. (See, e.g., People v. Horning (2004) 34 Cal.4th 871, 905.)
The doctrine of invited error will not bar an appeal when the decision regarding an instruction is based on defense counsel's mistake or ignorance (People v. Bradford (1997) 14 Cal.4th 1005, 1057; People v. Wickersham (1982) 32 Cal.3d 307, 330, overruled on another point in People v. Barton, supra, 12 Cal.4th at p. 200), or when the record is ambiguous as to whether trial counsel had considered and rejected the challenged instruction (People v. Valdez (2004) 32 Cal.4th 73, 115-116; People v. Castaneda (2011) 51 Cal.4th 1292, 1330).
Here, the record does not indicate a deliberate tactical purpose for failing to request an instruction on involuntary manslaughter. The People point to the following statement made by defendant's counsel: "I believe the People, more than likely, have sufficient evidence regarding second degree for there is malice aforethought in the using of the bat. I believe they presented evidence regarding that. There was viciousness in killing the victim by hitting him repeatedly in the head as we have stipulated to the cause of death." The People also refer to defense counsel's statements that this "is a typical second degree, malice aforethought by use of a bat," and there is "[a]ll kinds of evidence regarding malice aforethought, but nothing as to premeditation . . . ."
Although the People assert that counsel made these statements during the discussion regarding jury instructions, they were actually made during defense counsel's argument in support of defendant's motion to dismiss the first degree murder charge pursuant to section 1118.1. The issue at that hearing was whether the prosecution had presented sufficient evidence to support the premeditation and deliberation elements of first degree murder. In this context, the quoted statements by defense counsel are fairly read as a concession for purpose of that motion that there was sufficient evidence of malice to support second degree murder. Even if this concession applied beyond the scope of the motion to dismiss, the fact that there was evidence that would support a finding of malice for purposes of second degree murder does not preclude the possibility that there was also evidence that would support a finding that malice was absent and, therefore, support an involuntary manslaughter instruction. The statements made during the motion, we conclude, cannot be reasonably read as the expression of a tactical decision to forego instruction on involuntary manslaughter.
During the discussion of jury instructions, the court commented that "[t]he defense is only asking for [voluntary manslaughter]. And I think we all agree there is no evidence for involuntary manslaughter." Defense counsel responded, "That's correct." Counsel's agreement with the court does not indicate a deliberate tactical purpose for refusing an instruction on involuntary manslaughter. In People v. Bradford, supra, 14 Cal.4th 1005, the defendant was charged with robbery and murder, among other charges. On appeal, the defendant argued that the court should have instructed the jury on theft, a lesser included offense of robbery. (Id. at p. 1055.) "During the discussion regarding jury instructions, the trial court asked, 'Is there a lesser included . . . [on] robbery?' Defense counsel responded, 'The evidence, your honor, just doesn't in my opinion warrant any lessers in this case other than the second degree murder, and that is the only thing I'm asking for.'" (Id. at p. 1057.) The Supreme Court concluded: "[W]e cannot characterize counsel's response as a request that the trial court omit instruction on lesser included offenses. [Citation.] Rather, it appears that counsel mistakenly believed that the evidence did not warrant any such instruction. No express objection to relevant instructions or tactical choice is apparent." (Ibid.) The present case is indistinguishable from Bradford on this point. Accordingly, we conclude defendant is not barred by the doctrine of invited error from raising the failure to instruct on involuntary manslaughter as an issue on appeal. We turn next to that issue. B. Substantial Evidence of Involuntary Manslaughter
As discussed above, a trial court must generally instruct the jury on lesser included offenses sua sponte "whenever evidence that the defendant is guilty of only the lesser offense is substantial enough to merit consideration by the jury." (People v. Halvorsen, supra, 42 Cal.4th at p. 414, citing Breverman, supra, 19 Cal.4th at pp. 154-155, 162.) Substantial evidence does not mean any evidence no matter how weak. (People v. Avila (2009) 46 Cal.4th 680, 705; Breverman, supra, at p. 162.) Rather, substantial evidence in this context means evidence a reasonable jury could find persuasive. (People v. Halvorsen, supra, at p. 414; People v. Barton, supra, 12 Cal.4th at p. 201, fn. 8.)
On appeal, we independently determine whether an instruction of a lesser included offense should have been given. (People v. Manriquez (2005) 37 Cal.4th 547, 584; People v. Cole (2004) 33 Cal.4th 1158, 1215.)
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) Malice aforethought can be express or implied. (§ 188.) Express malice is, in essence, the intent to unlawfully kill. (People v. Perez (2010) 50 Cal.4th 222, 233, fn. 7; People v. Turk (2008) 164 Cal.App.4th 1361, 1382.) Malice is implied "when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." (People v. Cook (2006) 39 Cal.4th 566, 596.) The mental state associated with murder under an implied malice theory is "the requirement that the defendant '"knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life."' [Citations.]" (People v. Hansen (1994) 9 Cal.4th 300, 308, overruled on other grounds in People v. Chun (2004) 45 Cal.4th 1172, 1199; see also People v. Blakeley (2000) 23 Cal.4th 82, 87; CALJIC No. 8.11.)
The unlawful killing of a human being without malice is manslaughter. (§ 192; see People v. Rios (2000) 23 Cal.4th 450, 460 [the feature that distinguishes murder from manslaughter "is that murder includes, but manslaughter lacks, the element of malice."].) Manslaughter may be voluntary, involuntary, or vehicular. (§ 192.) Only the first two types are relevant here.
Although both voluntary and involuntary manslaughter are committed without malice (§ 192), the actual mental state involved in the different crimes is not identical. A defendant may be guilty of voluntary manslaughter if he in fact acts with an intent to kill or with conscious disregard for life, but, as a result of being provoked, kills in a sudden quarrel or heat of passion or with the unreasonable but good faith belief in the need to act in self-defense. (People v. Blakeley, supra, 23 Cal.4th at pp. 87-89; People v. Lasko (2000) 23 Cal.4th 101, 108.) That is, the mens rea for voluntary manslaughter is "a state of mind that amounts in fact to malice aforethought, but is deemed in law not to do so." (People v. Rios, supra, 23 Cal.4th at p. 470 (conc. opn. of Mosk, J.).)
In contrast with voluntary manslaughter, a person who commits involuntary manslaughter kills another without any intent to kill and without conscious disregard of the risk to human life. (CALCRIM No. 580.) The mental state associated with involuntary manslaughter is criminal negligence. (People v. Butler (2010) 187 Cal.App.4th 998, 1007.) "Criminal negligence has been defined in a variety of ways. In People v. Penny [(1955) 44 Cal.2d 861], at page 879, the court explained: '"[C]riminal negligence"' exists when the defendant engages in conduct that is '"aggravated, culpable, gross, or reckless"'; i.e., conduct that is '"such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences."' Similarly, in People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 . . . , the court stated that criminal negligence exists 'when a man of ordinary prudence would foresee that the act would cause a high degree of risk of death or great bodily harm.'" (Id. at p. 1008.)
The Butler court also distinguished criminal negligence in the context of involuntary manslaughter from implied malice in the context of murder: "Both murder (based on implied malice) and involuntary manslaughter involve a disregard for life; however, for murder the disregard is judged by a subjective standard whereas for involuntary manslaughter the disregard is judged by an objective standard. [Citations.] Implied malice murder requires a defendant's conscious disregard for life, meaning that the defendant subjectively appreciated the risk involved. [Citation.] In contrast, involuntary manslaughter merely requires a showing that a reasonable person would have been aware of the risk." (People v. Butler, supra, 187 Cal.App.4th at p. 1008; see also People v. Cleaves (1991) 229 Cal.App.3d 367, 378 ["[I]f the defendant commits an act which endangers human life without realizing the risk involved, he is guilty of [involuntary] manslaughter, whereas if he realized the risk and acted in total disregard of the danger, he is guilty of murder based on implied malice."].)
Here, there is no dispute that a reasonable person would have been aware of the risk to Selph's life caused by defendant's attack on Selph with a baseball bat. Thus, regardless of defendant's actual, subjective awareness of the risk he posed to Selph's life, the objective, criminal negligence standard required for involuntary manslaughter was easily satisfied. The issue is whether there is substantial evidence that defendant did not have the subjective mental state required for murder—either the intent to kill (express malice) or a conscious disregard for life (implied malice). If so, the court was required to instruct the jury as to involuntary manslaughter. (See People v. Rogers (2006) 39 Cal.4th 826, 884.)
Evidence of a mental disease, mental defect, or mental disorder is admissible on the issue of whether an accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought. (§ 28, subd. (a).) Thus, a "verdict of involuntary manslaughter is warranted where the defendant demonstrates 'that because of his mental illness . . . , he did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought).' [Citation.] An instruction on involuntary manslaughter is required whenever there is substantial evidence indicating the defendant did not actually form the intent to kill." (People v. Rogers, supra, 39 Cal.4th at p. 884, quoting People v. Saille (1991) 54 Cal.3d 1103, 1117.)
Whether the accused actually formed the required mental state is to be distinguished from diminished capacity. "While the Legislature, in eliminating the diminished capacity defense, 'precluded jury consideration of mental disease, defect, or disorder as evidence of a defendant's capacity to form a requisite criminal intent, . . . it did not preclude jury consideration of mental condition in deciding whether a defendant actually formed the requisite intent.' [Citations.]" (People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1450.)
Here, the testimony by defendant's expert, Dr. Kania, is sufficient to establish that defendant had a mental disease, defect, or disorder for some time prior to the time he killed Selph and that he did not actually harbor malice aforethought at the time of the killing. Dr. Kania testified that defendant had been diagnosed with schizophrenia, "one of the more severe psychological disorders." A person who suffers from schizophrenia, he explained, may hear voices others do not hear, see people others do not see, and be unaware of things around them. A schizophrenic, he stated, "may be responding to thoughts that they are having that makes it difficult for them to think about what they are doing, to reflect upon it, to give any thought to the consequences of those issues that a person not suffering from those symptoms would be able to do." Dr. Kania opined that defendant's behavior leading up to the killing of Selph was consistent with schizophrenia, and that his mental illness may have affected whether defendant had the mental state of malice aforethought or the intent to kill.
Testimony of prosecution witnesses further supports a finding that defendant had for years suffered from a mental disease, defect, or disorder. He would not bathe or change his clothes for months at a time, said he could see people walking through walls, believed the government was trying to control him, and said his head "was fucking with him." His bedroom was "filthy" and "disgusting." He would talk to himself in his room using different voices. He would talk to himself in the front yard, yell at passersby, and kick and tear at the fence. His behavior improved when he took medication prescribed by a psychologist and deteriorated when he did not. During the week preceding the killing of Selph, defendant hung a baseball bat around his neck with an extension cord, carved an obscenity into a microwave oven, and stuck a steak knife in the oven's clock.
The circumstances immediately preceding the killing suggest that defendant was suffering from a mental disease, defect, or disorder at the time of the attack. It does not appear that his violent behavior was reasonably provoked by Selph or anyone else. At approximately 2:45 p.m., he began banging a baseball bat against a wall inside his bedroom. When Brenda responded by telling him to get out of her house, he turned toward her and, as Brenda described it, "looked beyond me," like "he was looking through me." Although she had seen defendant "stare off" before, "this was different." She "felt that something wasn't right." When he took a step toward her with the bat, she locked herself in a bedroom. When defendant could not get into the room, he turned the bat on Townsend and then Selph, without any provocation. Townsend testified that as defendant approached them, he was sweating and breathing heavily, and that his "eyes were almost piercing." Defendant's beating of Townsend and Selph appears to be as irrational and inexplicable as it was brutal and violent. The attack stands in stark contrast with evidence that, while defendant's prior behavior was odd, he was never hostile toward Selph or others and was generally respectful when spoken to.
Although the People suggest that defendant was hitting his bedroom wall as a way of taking out his anger and frustration over Brenda's refusal to give him a cigarette, his aggression against the wall did not take place until at least six hours after the morning conversation about the microwave oven and cigarettes.
--------
Dr. Kania's testimony, combined with the evidence summarized above, are sufficient to establish that defendant suffered from a mental disease, defect, or disorder that prevented defendant from actually forming the intent to kill or malice aforethought necessary to convict him of murder. (See § 28, subd. (a).) If the jury was persuaded by such evidence, defendant could be convicted of no more than involuntary manslaughter. (See People v. Saille, supra, 54 Cal.3d at pp. 1116-1117.) Therefore, the court erred in failing to instruct the jury as to involuntary manslaughter.
The People argue that inherent in the jury's verdict of second degree murder is the finding that defendant acted with malice. However, the jury's verdict may well have been the result of having to make the kind of "all or nothing choice"—between convicting defendant of murder or an acquittal—that the rule requiring instructions on lesser included offenses seeks to avoid. (See People v. Barton, supra, 12 Cal.4th at p. 196; Breverman, supra, 19 Cal.4th at p. 155.) Indeed, the jury's conclusion that defendant was guilty of second degree murder, rather than the charged crime of first degree murder, suggests that the jurors found that defendant did have a mental disease, defect, or disorder that negated the premeditation and deliberation required for first degree murder. (See fn. 5, ante .) Although the jurors might have believed defendant's mental condition caused him to lack malice aforethought, they may have been unwilling to acquit him of any crime related to his killing of Selph and, therefore, found him guilty of second degree murder.
The People further argue that "all of the evidence presented indicated that [defendant] was in control of his faculties at the time of his crimes and that he knew what he was doing." The People point to the circumstances of the killing, the lack of evidence that defendant was hallucinating, defendant's cooperative behavior with law enforcement following the attack, and Dr. Rath's testimony that defendant suffered from antisocial personality disorder (not schizophrenia), which would not prevent one from forming an intent to kill. We do not doubt the jurors could easily conclude that defendant formed the requisite mental state for murder. (Indeed, as we explain in the next part, a reasonable jury probable would come to this conclusion.) However, it is not necessarily the only conclusion that reasonable jurors could draw from the evidence. The testimony of Dr. Kania, combined with the testimony of the witnesses regarding defendant's behavior before and during the attack, as described above, provide sufficient evidence that defendant suffered from a mental disease, defect, or disorder that could have caused him to lack the malice aforethought required to be guilty of murder. C. Prejudice
The erroneous failure to instruct on a lesser included offense generally is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818. (People v. Rogers, supra, 39 Cal.4th at pp. 867-868; Breverman, supra, 19 Cal.4th at pp. 177-178.) "Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Breverman, supra, 19 Cal.4th at p. 177.)
Here, the relevant evidence for this question is evidence supporting or negating the element of malice; that is, evidence bearing on the issues of whether defendant acted with knowledge that his conduct endangered the life of another and with conscious disregard for life. As explained above, Dr. Kania's testimony and facts indicating that defendant had a mental defect are sufficient to warrant an instruction on involuntary manslaughter. When viewed in the context of the entire record, however, such evidence is comparatively weak, and the evidence of malice relatively strong.
The strongest evidence supporting the existence of malice are the facts surrounding the incident. Defendant held a baseball bat in a manner threatening to Brenda, followed her to her bedroom, and banged on the bedroom door; when Townsend asked what he was doing, he turned and attacked her; when Selph then asked what he was doing, defendant attacked him and continued to hit him even as Townsend jumped on his back and yelled that he was killing Selph. These actions are strong evidence that defendant acted with knowledge that his conduct endangered the life of Selph and conscious disregard for life.
As explained above, Dr. Kania's testimony provides an explanation that, if believed, could justify a verdict of involuntary manslaughter. However, his views were contradicted by Drs. Rath and Ezra. Dr. Rath explained defendant's bizarre behavior as symptoms of an antisocial personality disorder, which did not preclude the ability to form the intent to kill. Dr. Rath supported his opinion by pointing to the fact that defendant placed the bat in a dumpster after the killing and defendant's admission that he ran from the scene because he was scared of what would happen. These actions, Dr. Rath explained, indicate reasoning, awareness, and consciousness of his actions. Dr. Ezra's testimony, as well as the testimony of the prebooking physician that defendant appeared to be normal and in control of his physical and mental faculties, further support the view that defendant acted with malice.
In considering what "a jury is likely to have done in the absence of the error under consideration" (Breverman, supra, 19 Cal.4th at p. 177), we take note that the jurors in this case apparently accepted the argument that defendant suffered from a mental disease, defect, or disorder—at least with respect to the element of premeditation and deliberation. If the jury was willing to reduce the degree of murder based upon defendant's mental condition, it is possible they would have reduced the crime to involuntary manslaughter if given the option to do so.
This possibility makes the issue of prejudice a close question. Nevertheless, we conclude that the relative strength of the evidence of malice reflected in the facts of the killing and Drs. Rath's and Ezra's testimony, compared with the comparative weakness of the evidence of the absence of malice, is so great that we are compelled to conclude that the error was not prejudicial. Accordingly, we will affirm the judgment.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
Acting P.J.
We concur:
Miller
J
Codrington
J