Opinion
F067354
07-13-2015
THE PEOPLE, Plaintiff and Respondent, v. TYRONE JUSTIN COWAN, Defendant and Appellant.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F07906026)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Tyrone Cowan appeals from a judgment of conviction for first degree murder, attempted first degree murder, and second degree robbery. The charges arose from a rather egregious set of facts: Cowan attempted to rob two women of their purses as they were walking home from an elementary school with two small children. When the ladies failed to comply with his demands, he shot the first victim in the head and then turned his gun on her friend, who was seven months pregnant at the time. The pregnant woman escaped with a gunshot wound to her arm. Cowan fired an additional shot into the back of the first woman's skull, execution style, then picked up the victims' purses and fled the scene.
The main question in this appeal is whether the prosecution's reliance upon evidence of an interrogation that was conducted following an incomplete advisement of the defendant's rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) establishes a ground for reversal. The Miranda violation is astutely identified in Cowan's briefs, but it is obvious from the record that his trial attorney missed the issue, as did the trial court. The claim has thus been forfeited. This forfeiture serves as the basis for Cowan's alternative argument of constitutionally deficient representation. As will be explained, we conclude that the ineffective assistance of counsel claim fails under the applicable test for harmless error.
Cowan also seeks reversal on the basis of alleged instructional errors which he attributes to both the trial court and his former attorney. Finally, he claims to have suffered prejudice as a result of cumulative error. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying incident occurred on August 1, 2007 in southwest Fresno near the intersection of Clara and Vine Avenues. Efigenia Meza had walked to a nearby school with her stepchildren that morning to register them for classes. A relative named Geremias Leon accompanied her on this errand. While crossing through a field on their way back home, the group was approached by a man carrying a rifle. The stranger began talking to them and gesturing towards Ms. Meza's and Ms. Leon's purses. Neither woman spoke English, but the children understood that he was saying, "Give me the bags." As the kids ran off to find help, the gunman shot and killed Ms. Meza. He also fired multiple rounds at Ms. Leon, who sustained a non-lethal bullet wound while attempting to reach safety. Both victims dropped their purses during the gunfire, and the killer took those items with him when he left the field.
Several law enforcement officers responded to reports of the shooting and secured the perimeter around Ms. Meza's body. The ensuing investigation led police to a nearby home where the suspect was believed to have fled. Following a stand-off that culminated in a SWAT team firing tear gas into the residence, Tyrone Cowan exited and surrendered to police. Cowan made several incriminating statements at the time of his arrest. He later participated in a recorded interview with homicide detectives, whereupon he further implicated himself in the shootings. We provide a more detailed summary of Cowan's statements in the Discussion, post.
Cowan was charged by amended information with first degree murder (Pen. Code, §§ 187, subd. (a), 189; Count 1), attempted first degree murder (§§ 187, 189, 664; Count 3), and second degree robbery (§ 211; Counts 2 & 4). The information contained a special circumstance allegation of murder occurring during the commission of a robbery (§ 190.2, subd. (a)(17)(A)). Further enhancement allegations were added to each count for personal and intentional discharge of a firearm resulting in death or great bodily injury (§ 12022.53, subd. (d)).
All statutory references are to the Penal Code unless otherwise specified.
There were extensive delays in the criminal proceedings due to questions concerning the defendant's mental competency. Cowan was transferred back and forth between the Fresno County Jail and Atascadero State Hospital (Atascadero) at least three times over a period of approximately four years. The staff members at Atascadero had suspected, and ultimately concluded, that he was feigning symptoms of mental illness in order to avoid prosecution. A final competency determination was made in August 2012, and the case was then tried to a jury in April 2013. An earlier plea of not guilty by reason of insanity was withdrawn by the defense prior to the commencement of trial.
The prosecution's case-in-chief included testimony from Ms. Leon and from Ms. Meza's stepchildren, which established the facts surrounding the offenses. The jury was made aware that Ms. Leon and Ms. Meza's stepson had previously identified Cowan as the perpetrator during live show-up and photographic line-up procedures. Jurors also heard evidence regarding the defendant's incriminating statements to police.
Testimony by law enforcement officers and crime scene technicians revealed that one .22-caliber bullet and five spent .22-caliber shell casings were recovered from the crime scene. A search of Cowan's home uncovered bloody clothing, as well as another live round and spent shell casing which were of the same caliber as those found next to the homicide victim. The presumed murder weapon, an illegally modified .22-caliber Ruger rifle, was located at the bottom of a ponding basin near the field where the shooting took place. Forensic analysis indicated that all of the recovered shell casings had been fired from the .22-caliber rifle.
Pathologist Michael Chambliss, M.D., testified regarding the autopsy he performed on the deceased victim. His testimony explained that Ms. Meza was shot three times; once in the upper body and twice in the head. Dr. Chambliss believed that the injury to the back of the victim's head came last in the sequence of shots, preceded by bullet strikes to the left chest and right side of the face. The characteristics of Ms. Meza's final head wound indicated that the barrel of the gun was placed directly against her skull when it was fired.
The defense case was comprised of testimony from one expert witness. Dr. Avak Howsepian, a psychiatrist, evaluated Cowan on two occasions in October 2007 (approximately four months after his arrest). Based on those face-to-face meetings and a review of the defendant's medical records, Dr. Howsepian concluded that Cowan suffered from "bipolar disorder not otherwise specified; psychotic disorder not otherwise specified; mild mental retardation; and anxiety disorder not otherwise specified." He also noted that Cowan had a history of aggressive and "disinhibitive" personality changes which were attributed to a head injury he sustained as a child. Dr. Howsepian believed that Cowan's conditions sometimes caused his thought processes to become "highly distorted and highly disorganized," which could impair his ability to premeditate and deliberate, i.e., "to think things through clearly [and] consider consequences of what [he] might be doing."
In rebuttal, the prosecution called two court-appointed psychologists: Harold Seymour, Ph.D., and Richard Kendall, Ph.D. Dr. Seymour interviewed Cowan in 2010 and again in 2013, and diagnosed him with "a mood disorder not otherwise specified and with a borderline intellectual function." The expert did not find Cowan to be psychotic. He did, however, note that Cowan "was self-identifying with a lot of dramatic and atypical psychotic symptoms," which "is very unusual for somebody who's actually very mentally ill." This prompted Dr. Seymour to administer a standardized test designed to determine if someone is faking psychosis. Cowan's score on the examination was highly indicative of malingering.
Through the use of hypothetical questions, the prosecution elicited opinions from Dr. Seymour relevant to the defendant's mental state at the time of the shooting. The expert agreed that using a gun to facilitate a robbery and then shooting the victim when he or she failed to relinquish the demanded property would be classified as "goal-directed behavior." Subsequent flight from the crime scene, disposing of the stolen goods and murder weapon, changing out of bloody clothes, and hiding from police would all likewise indicate planning and a goal-oriented thought process.
Dr. Kendall interviewed Cowan in February 2013, approximately six weeks before trial. Cowan reportedly told the expert, "All I remember is a whole lot of blood and demons, that's what I saw... I found the gun and then I played with it... I fired it and then I blacked out and I shot the gun again. I saw demons. I saw this lady laying on the ground. Then I left.... I did pick up the purses, but I put them on the street and I think someone else took [them]."
Cowan also disclosed details about what he had done after the shooting: "I ran back to my house, I took off my shirt and clothes because they had blood on them, then I went to my friend's house." It was Dr. Kendall's opinion that Cowan had been feigning symptoms of mental illness during their interview. As for the defendant's behavior on the day of the shooting, the expert believed his actions demonstrated an intentional and "goal-directed" course of conduct.
Cowan was apprehended at the home of an unidentified third party, which was not his place of residence. The bloody clothes, live ammunition, and the .22-caliber shell casing were found at a different location. --------
The jury convicted Cowan on all counts and found each enhancement allegation to be true. He was sentenced to life in prison without the possibility of parole under Count 1, plus a consecutive term of 25 years to life under Count 3. Additional terms were imposed under Counts 2 and 4, and stayed pursuant to section 654. A timely notice of appeal was filed on May 22, 2013.
DISCUSSION
Miranda Issues
Background
When Cowan surrendered to police, he told a member of the SWAT team, "I know I killed her." He repeated this statement several times. A short while later, as he was receiving medical attention, Cowan turned to a paramedic and said that he was "sorry for shooting that lady." The comment was overheard by a homicide detective named Ray Villalvazo. In the ostensible interest of public safety, Detective Villalvazo asked Cowan where the gun was located. Cowan replied that he had dropped it in the street.
After being transported to police headquarters, Cowan attempted to engage Officer Manuel Maldonado in conversation by saying, "Hey bro, can I ask you a question?" The officer replied, "Sure. You can ask me anything you want." Cowan then made the following statements: "If I was in a field with a rifle and accidentally shot myself in the head, got scared, and pointed the gun away, not realizing my finger was still on the trigger and the gun was still firing, [and] next thing I know I shot two people, what can they do to me for that? What happens? You know, I didn't mean for all that to happen." Officer Maldonado gave a non-committal response, advising that he should "hold those questions and statements" for the homicide detectives who would be ready to speak with him in just a few minutes. He then escorted Cowan to an interview room and turned him over to Detective Villalvazo.
Once inside the interview room, Detective Villalvazo attempted to inform Cowan of his Miranda rights. The advisement was memorialized in an audio recording as follows: "[W]e have to, uh, you know, read you your rights before we get started, okay? [Cowan responds affirmatively.] All right. So before we do that I'll tell you that you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to an attorney and have an attorney present with you while you are being interrogated. Um, you understand each of these rights I have explained to you? [Cowan: "Yes. I do."]."
During the interrogation, Cowan described walking through a field near his house, discovering a firearm laying on the ground, picking it up, and firing the weapon haphazardly until it ran out of bullets. He accepted responsibility for injuring the two victims, but insisted that he had shot them by accident. Cowan denied attempting to rob the victims and also denied ever having possession of their belongings. When the detectives accused him of lying, he tried to negotiate with them, propositioning to reveal "everything that happened" in exchange for a "deal." Detective Villalvazo responded, "I don't cut deals." Cowan later expressed concern over the potential consequences of his actions and twice asked, "How many years I'm looking at?" He ultimately admitted to taking the victims' purses, but maintained that the shooting was accidental.
On the second day of trial, Cowan's defense attorney filed a motion in limine requesting a hearing pursuant to Evidence Code section 402 "on the issue of statements attributed to [the defendant] during the time frame of arrest, processing and interrogation by police." The motion contained a general summary of the holdings in Miranda and of other related legal principles, but provided no discussion about the facts of the case or any explanation of how the defendant's Miranda rights might have been violated. When the motion was heard, the few arguments made by defense counsel were all directed towards Cowan's pre-interrogation statements, namely the statements of admission at the time of his arrest; his response to Detective Villalvazo's inquiry about the location of the gun; and the hypothetical question posed to Officer Maldonado at the police station.
The trial court ruled that all of Cowan's pre-interrogation statements were spontaneous and/or voluntary, unprompted by any attempt by police officers to elicit a response, and thus not violative of Miranda. The question and answer regarding the location of the gun was deemed admissible under the "public safety" exception to the Miranda requirements (New York v. Quarles (1984) 467 U.S. 649, 655). Commenting briefly on the warnings that were given before the formal interview, the trial court said, "As far as the Miranda advisement itself, it's clear, it's complete, and the defendant specifically states that he understands." Defense counsel did not object to, or otherwise disagree with, the court's conclusion on this point.
Appellant now asserts that Detective Villalvazo's Miranda advisement was defective because it failed to explain that he was entitled to legal representation regardless of whether or not he could afford private counsel. Respondent contends that the issue is forfeited since it was never raised in the trial court. In a Supplemental Opening Brief, Cowan alleges ineffective assistance of counsel based on his trial attorney's failure to preserve the issue for appeal.
Forfeiture
"To give force to the Constitution's protection against compelled self-incrimination, the [United States Supreme] Court established in Miranda 'certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.' [Citation.] Intent on 'giv[ing] concrete constitutional guidelines for law enforcement agencies and courts to follow,' Miranda prescribed the following four now-familiar warnings: '[A suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.'" (Florida v. Powell (2010) 559 U.S. 50, 59-60, citing Miranda, supra, 384 U.S. at pp. 441-442, 479.)
Advisement of the absolute right to counsel regardless of indigence is no less important than the other three Miranda admonitions. (See People v. Diaz (1983) 140 Cal.App.3d 813, 822-824.) If law enforcement officials fail to provide any one of the four warnings prior to a defendant's custodial interrogation, subsequent admissions may not be used against the defendant in the prosecution's case-in-chief. (Ibid; People v. Bradford (2008) 169 Cal.App.4th 843, 852-854.) Because Detective Villalvazo did not advise Cowan of his right to obtain legal representation at no cost, the prosecution's reliance upon the statements he made during the interrogation was improper and should not have been allowed. However, "Evidence Code section 353, subdivision (a) allows a judgment to be reversed because of erroneous admission of evidence only if an objection to the evidence or a motion to strike it was 'timely made and so stated as to make clear the specific ground of the objection.'" (People v. Demetrulias (2006) 39 Cal.4th 1, 20.)
Evidence Code section 353 operates as a rule of forfeiture in the context of Miranda violations. (People v. Polk (2010) 190 Cal.App.4th 1183, 1194 (Polk).) "Accordingly, unless a defendant asserts in the trial court a specific ground for suppression of his or her statements to police under Miranda, that ground is forfeited on appeal, even if the defendant asserted other arguments under the same decision." (Ibid.; accord, People v. Rundle (2008) 43 Cal.4th 76, 115-116, disapproved of on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 ["defendant's entirely generic motion to exclude all of his statements to law enforcement officers, coupled with the absence of specific argument that defendant had invoked his right to silence at the end of the first interview, failed to preserve this claim for appeal"].) Here, trial counsel's generic motion and boilerplate recital of various legal principles was insufficient to preserve Cowan's Miranda claim. As clear as Detective Villalvazo's omission appears in the record, so does the defense attorney's failure to bring the error to the attention of the trial judge. "Because [he] did not raise the issue of the substantive adequacy of the Miranda warnings in the trial court, defendant has forfeited that issue on appeal." (Polk, supra, 190 Cal.App.4th at p. 1194.) The statutory nature of the forfeiture precludes discretionary review of the claim. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, an appellant "bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (People v. Centeno (2014) 60 Cal.4th 659, 674.) Respondent does not address the first element of Cowan's claim, and focuses instead on the question of prejudice. It is appropriate that we do the same. (See Strickland v. Washington (1984) 466 U.S. 668, 697 (Strickland) ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."]; accord, People v. Boyette (2002) 29 Cal.4th 381, 430-431.)
The test for prejudice is whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.... [A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." (Id. at pp. 695-696.)
Cowan generally concedes that the evidence of his identity as the shooter was overwhelming and uncontroverted. He argues, in essence, that the custodial interview portrayed him as lucid and calculating, and in such a way that undermined Dr. Howesepian's testimony regarding how his psychological disorders might have affected his ability to form the required mens rea of the charged offenses. In support of this position, Cowan points out that the prosecutor questioned all three experts about his behavior during the interview and further relied on the improperly admitted evidence during closing argument. The question, therefore, is whether it is reasonably probable that the jury would have made different findings on the elements of premeditation, deliberation, and/or the specific intent to steal or kill, but for its knowledge of what occurred during the interrogation.
Despite the facial cogency of appellant's argument, there is an important distinction between the possibility of a more favorable outcome and the likelihood that such a result would have occurred. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 218, quoting Strickland, supra, 466 U.S. at p. 694.) Stated another way, "[t]he likelihood of a different result must be substantial, not just conceivable." (Harrington v. Richter (2011) 562 U.S. 86, 112.) For the reasons that follow, we conclude appellant's burden has not been met.
With or without the interrogation evidence, Cowan's chances at a more favorable outcome were primarily dependent upon Dr. Howesepian's responses to two questions, neither of which were directed towards the specific facts of the case. The expert was first asked, "These diagnoses that you describe, how do they affect the way Mr. Cowan thinks?" Dr. Howesepian replied:
"Well, he tends to think - when he's in the grip of these symptoms I'm describing - in ways that are highly distorted and highly disorganized, not well thought through in ways that he will say things or think things that intrude upon his mind as opposed to him in a very deliberate way bringing them to mind. So there are a number of ways in which they affect him. He also, because of his mental retardation, is quite concrete in how he thinks. He doesn't seem to be able to think very abstractly or in the - the degree of detail that one might expect of someone his age, thinking about consequences or variables that infringe upon his situation in ways and acting without thinking very clearly."
In follow-up to this response, defense counsel said, "I'm gonna ask you carefully this question: This - these symptoms, and this diagnosis, how does it affect a person's ability to premeditate, deliberate, or harbor malice aforethought? Can you answer that?" The response was as follows:
"Yes. So because these conditions impair an individual's ability to think things through clearly, to consider the consequences of what they might be doing or to consider certain aspects of their social context in a way to act appropriately, because they think and act impulsively, their deliberation is often very clearly degraded substantially, and in his case, this is best seen, I think, in his diagnoses of personality change, the aggressive component of that and his bipolar disturbance, the main component, where there is a flood of thoughts going through his mind and a - and an exuberant kind of activity that doesn't - isn't very sensitive to what's in his environment. It's kinda driven by these internal pressures to think
certain things, to talk nonstop, and to act in certain ways. So deliberation is substantially degraded in that respect....
Premeditation also would fall into what I just mentioned as well, that an individual's ability to plan something and carry out their plan in some kind of a coherent, structured sort of way is interfered with by this flood of experiences and activity and thoughts that aren't under an individual's direct control. They control him rather than him controlling them. And the same holds for malice aforethought, which is a fancy designation that would also fall under this category of - not his - again, a certain context, certain circumstances, his not being able to form those kinds of, um, intentions toward another person, maybe being distracted by thinking of other things and acting in ways that are not quite consistent with what he's thinking in virtue of having so many things on his mind and having so much energy to expend."
The above excerpts show that Dr. Howsepian's opinions in relation to the question of whether or not Cowan actually formed the required mens rea for the charged crimes were, at best, generalized and equivocal. His testimony must be balanced against the considerable amount of evidence presented on the issue of malingering, which was itself reflective of Cowan's ability to plan and deliberate. The properly admitted evidence regarding the hypothetical question posed to Officer Maldonado and Cowan's admissions to Dr. Kendall about fleeing the scene, changing out of the bloody clothes, and hiding from police was highly probative of his thought process and decision-making capacity on the day of the shooting. The manner in which the crimes were committed offered further insight into his mental state. (See People v. Smith (2005) 37 Cal.4th 733, 741 [firing shots at a victim from close range permits an inference of intent to kill]; People v. Lenart (2004) 32 Cal.4th 1107, 1127 ["an execution-style killing may be committed with such calculation that the manner of killing will support a jury finding of premeditation and deliberation, despite little or no evidence of planning and motive."]; People v. Walker (1988) 47 Cal.3d 605, 632 ["The execution-style shooting clearly evinces an intent to kill."].) Given the weight of the evidence in support of the verdict and the relative weakness of the defense case, it is unlikely that any reasonable juror would have been swayed by Dr. Howesepian's testimony in the absence of the interrogation evidence.
Equally important to our analysis is the jury's true finding on the robbery special circumstance allegation. Dr. Howespian offered no testimony in regards to the required mens rea for robbery. The interrogation evidence was arguably favorable to Cowan on this issue because it at least showed that he had previously denied making any attempt to rob his victims. Without that evidence he would have had virtually no defense to the charges in Counts 2 and 4. By finding the robbery special circumstance allegation to be true, the jury effectively adopted the prosecution's felony murder theory. Felony murder does not require proof of premeditation, deliberation, or the intent to kill. (People v. Bryant (2013) 56 Cal.4th 959, 965; People v. Thornton (2007) 41 Cal.4th 391, 436.) As such, appellant's first degree murder conviction was all but inevitable. The totality of the evidence thus compels us to conclude it is not reasonably probable that, but for counsel's failure to object to the Miranda violation, the outcome of the case would have been different.
Jury Instructions
Appellant claims that he was prejudiced by the trial court's failure to instruct jurors on involuntary manslaughter as a lesser included offense of murder. He further contends that the jury should have been instructed on all counts pursuant to CALCRIM No. 510 ("Excusable Homicide: Accident") because a finding that the shootings occurred by accident would have negated essential elements of attempted murder, premediated murder, and felony murder. He faults the trial court for not providing these instructions with respect to Count 1, and claims that his attorney rendered constitutionally deficient performance by failing to request accident instructions in relation to Counts 2, 3, and 4. We are not persuaded by any of these arguments.
Applicable Law
Trial courts have a sua sponte duty to instruct on general principles of law relevant to the issues raised by the evidence, which includes giving instructions on lesser included offenses. (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) The de novo standard of review is applied to questions concerning whether a trial court erred by failing to provide a required instruction. (People v. Cook (2006) 39 Cal.4th 566, 596.) Where error is shown, the reviewing court must determine if there is a reasonable probability that the omission affected the jury's verdict. (People v. Breverman (1998) 19 Cal.4th 142, 176-177; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Upon request, trial courts are further required to give instructions that pinpoint a defendant's theory of the case if that theory is supported by substantial evidence. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) In this context, substantial evidence is "evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) "'[U]nsupported theories should not be presented to the jury.'" (People v. Marshall (1997) 15 Cal.4th 1, 40.) The erroneous failure to provide a pinpoint instruction is also evaluated for prejudice under the Watson standard. (People v. Larsen (2012) 205 Cal.App.4th 810, 830.)
Analysis
"Involuntary manslaughter is 'the unlawful killing of a human being without malice aforethought and without an intent to kill.' [Citation.] 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).'" (People v. Rogers (2006) 39 Cal.4th 826, 884.) It follows that an instruction on involuntary manslaughter should be given when there is substantial evidence to support a "diminished actuality" defense. (Ibid.; see People v. Elmore (2014) 59 Cal.4th 121, 139; § 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."].)
The trial court below expressed its view of the evidence as follows: "I simply don't believe there is any reasonable construction of the facts that would support a verdict of involuntary manslaughter." Were we to assume the testimony of Cowan's expert compelled a different conclusion, we would find the error to be harmless pursuant to our analysis in the prior section of the opinion. Furthermore, the jury found that Cowan acted with premeditation and deliberation in his attempt to kill Ms. Leon as alleged in Count 3, thus indicating its rejection of the diminished actuality defense. It is not reasonably probable that the verdict for Count 1 would have been different had jurors been given the option to find Cowan guilty of involuntary manslaughter rather than first degree murder.
As for the remaining claims of instructional error, the evidence did not warrant any type of advisement on the theory of accidental homicide. It is undisputed that the .22-caliber rifle was a semi-automatic weapon, meaning Cowan had to pull the trigger every time a bullet was fired from the gun. The evidence showed that the deceased victim sustained three bullet wounds, one of which was inflicted at point-blank range while the barrel of the gun was pressed against her head. Moreover, the jury returned true findings on every section 12022.53 allegation, thus confirming its belief that Cowan's use of the firearm was intentional. Hence, if the record could somehow be construed as permitting an instruction on accidental death or accidental use of a firearm, appellant's claims would still fail under the test for harmless error.
Cumulative Error
In his final argument, Cowan contends that the cumulative effect of the asserted errors deprived him of due process and a fair trial. Under the "cumulative error" doctrine, reversal of the judgment is warranted if it is reasonably probable that the outcome of the case would have been more favorable to him absent a combination of errors. (People v. Holt (1984) 37 Cal.3d 436, 458-459.) As previously discussed, any claim of error associated with the admission of evidence in violation of Miranda was forfeited and should not be considered in this analysis. However, even taking into account the Miranda issues, the facts and circumstances of this case lead us to conclude that the errors alleged by appellant, whether considered individually or collectively, were harmless.
DISPOSITION
The judgment is affirmed.
/s/_________
GOMES, J.
WE CONCUR: /s/_________
HILL, P.J.
/s/_________
POOCHIGIAN, J.