Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F15869.
Bamattre-Manoukian, J.
Defendant Marshall Kent Doud was convicted after jury trial of the first degree murder of his wife, Morgana Doud. (Pen. Code, § 187.) The trial court sentenced defendant to prison for 25 years to life. On appeal, defendant contends that the trial court erred (1) by refusing defendant’s request to instruct the jury on involuntary manslaughter; (2) by refusing defendant’s requested instruction on partial unconsciousness; (3) by allowing an expert to testify as to defendant’s mental state; (4) by allowing the expert to express an opinion about defendant’s credibility; (5) by admitting inadmissible hearsay; and (6) by admitting statements defendant made during guardianship proceedings involving his children. Defendant also contends that his conviction should be reversed due to cumulative error. As we find no prejudicial error, we will affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
Defendant was charged by information with the murder of his wife, Morgana Doud. (§ 187, subd. (a).)
The Prosecution’s Case-in-Chief
Monday, September 3, 2007, was Labor Day. Morgana Doud, defendant’s wife, went shopping with their 15-year-old daughter Teslin during the day. That evening, they watched television with defendant in the family room while Teslin’s twin brother Quinn and 17-year-old brother Koah played video games in Quinn’s ground floor bedroom. Neither Teslin nor Quinn heard their parents argue at all that day. Teslin was not aware of any marital problems her parents might have had. She thought that her parents had a great relationship. Quinn thought that his mother had been a bit stressed out ever since she opened up a business earlier that year.
As several witnesses have the same last name, in order to avoid confusion we will refer to them after their introduction by their first names.
Around 10:00 p.m., Morgana turned the television off and said that it was time for bed. She went to Quinn’s room and told the boys that she was going to bed and that they should go to bed, too. She then went upstairs to the master bedroom. Teslin did some laundry and went to bed around 10:45 p.m. Defendant appeared calm when he came downstairs and said goodnight to her. By that time, Koah and Quinn were already in their rooms. The house was being remodeled and Koah’s bedroom had a door but Teslin’s and Quinn’s bedrooms did not. Koah’s bedroom door was closed.
Quinn woke up when he heard his mother screaming. The clock next to his bed said that it was 2:45 a.m. He sat up, really afraid. After a minute or so, he worked up the courage to go upstairs to see if everything was okay. He walked up the stairs, stopped at the landing, poked his head into the hallway that leads to his parents’ bedroom and asked if everything was okay. No light was on and Quinn could not see anything, but he heard defendant respond, “Yes, everything’s okay. Your mother just had a nightmare. It’s all under control.” Quinn’s dog came out of the master bedroom and went downstairs with Quinn. Quinn saw his sister standing in the doorway of her bedroom.
Teslin woke up when she heard a woman’s scream coming from upstairs. Her cell phone said that it was 2:42 a.m. She stayed in bed because she was not sure that she had not dreamt it. She heard footsteps going up the stairs and then footsteps coming down the stairs. She got out of bed and went to her doorway. She saw Quinn and asked him what was going on. Quinn said “it’s fine. Mom just had a nightmare.” Quinn walked into Teslin’s room with her and sat down on her bed. They both said that they were afraid and Quinn said that he was not going to be able to fall back asleep. Teslin told him to go back to bed and put some music on. He went back to his room, sat on his bed, got a notebook out, and started writing. Although it was dark, some light was coming through his window.
After about five or 10 minutes, both Teslin and Quinn heard footsteps coming down the stairs. Quinn stopped writing. Defendant went to both Teslin’s and Quinn’s rooms. Defendant sat on Quinn’s bed and told him that everything was fine and that he should go back to sleep because he had school in the morning. Defendant appeared to know where he was and who Quinn was, and there was nothing unusual about his body language. Quinn went to the bathroom.
When defendant went to Teslin’s room she could make out his figure but she could not see his facial expression. He was wearing his robe. She asked defendant what was going on. Defendant calmly said, “everything is fine. Your mom just had a nightmare.” Defendant appeared to know where he was and to know who she was. Defendant left Teslin’s room and she heard him open Koah’s door, but she did not hear either of them say anything. Teslin then heard defendant go into the kitchen and turn on the faucet for a couple of seconds. Quinn saw defendant in the hallway when he came out of the bathroom. Defendant led Quinn back to his room and then left. Quinn started writing again. Teslin heard footsteps go upstairs.
A few minutes later, defendant came back downstairs. Defendant went into Quinn’s room, and Quinn’s stopped writing. Their conversation was basically the same as before, and Quinn thought that everything “was kind of odd. And that [defendant] was being very, very protective.” Quinn asked to see his mother but defendant said “no. It’s okay, I have it under control.” Teslin could hear them talking but she could not tell what was said. Defendant then came into Teslin’s room and asked her if everything was okay. She responded, “Yeah.... Quinn just couldn’t sleep so I told him to listen to music.” Defendant gave her a kiss good night and went back upstairs. Defendant came downstairs a third time and spoke to Quinn, but Teslin pretended to be asleep so he did not talk to her. Quinn heard defendant call for his dog and the dog go back upstairs with defendant. He then heard his dog walking around on the deck over his bedroom, but he had no idea why his dog would have been put out on the deck.
About 10 minutes later, Teslin and Quinn both heard footsteps come down the stairs and the door between the house and the garage open and close. Teslin fell back to sleep. Quinn heard a car on the street outside start up. He looked out his window but did not see the car. He went back to bed and fell asleep. He was awakened by his friend Turner in the morning because he had forgotten to turn on his alarm.
Teslin’s alarm went off at 7:00 a.m. and she got up around 7:10 a.m. to get ready for school. She saw Quinn’s friend Turner come in the back door and go to Quinn’s room. Quinn got up and dressed and then left Turner in the kitchen so he could check on his mother. He found his mother, naked, lying across the foot of the bed in the master bedroom with her feet on the ground. There was blood trickling out of her nose, her mouth was open, and her tongue was swollen. He sat down next to her, shook her, and said, “Mom, wake up.” After a few seconds he got a glass of water and dabbed it on her lips in an attempt to wake her up. When he realized that she was no longer alive, he started shaking and spilt water on the bed. He covered his mother with a comforter, went downstairs, and told Turner to go to school. After Turner left, Quinn tried to call 911 on the house phone but it did not work. He called 911 using his cell phone.
Around 7:15 a.m., Teslin heard Quinn talking on the phone in the living room after he should have left for school. She heard him give their home address and say that their mother was not breathing. She ran out to see what was going on. Quinn was hysterical. Teslin picked up the house phone in order to try to call a neighbor to get help, but there was no dial tone. Koah was in the shower. Teslin ran to her room, got her cell phone, called a friend’s home, and told her friend’s mother Kathleen that they needed help. Kathleen came over and she and Teslin ran upstairs.
Teslin found her mother lying sideways across the bed with some blood coming from her nose and a wet spot around her head. She was not moving or breathing. Kathleen attempted CPR. Teslin ran downstairs and called defendant’s cell phone but he did not answer. Quinn then called defendant’s cell phone while Teslin called his work phone number, but defendant did not answer either. Teslin called the main line to defendant’s workplace and was told that he had not been seen that morning and that there had been no activity on his computer. The 911 responders arrived. Teslin and Quinn banged on the bathroom door and told Koah that their mother was not breathing. Teslin and Quinn called defendant’s cell phone and work phone numbers again.
Around 7:30 or 7:45 a.m., defendant’s ringing cell phone was found in the master bedroom closet. Quinn gave what he had written in the middle of the night to a police officer. The children went to Kathleen’s house and did not try again to call defendant.
Dr. Richard Mason, a forensic pathologist with the county coroner’s office, viewed Morgana’s body at the scene. Her body was covered with a quilt and the sheet under her head was saturated with a fluid. He did not try to determine her time of death. He performed the autopsy on September 5, 2007, and determined that the cause of her death was asphyxiation due to smothering by the use of either a bare hand or some article such as clothing or bed linens over her nose and mouth. He estimated that asphyxiation in that manner would take “in excess of a minute.” Morgana sustained injuries on the side of her neck, at the base of her nose, at the base of her throat, on her right hip and right hand and right thigh, and on her fingers just behind the fingernails, which was “suggestive of some type of struggle or... some interaction between another party and deceased person.” She had also sustained a bruise on her head from some kind of “blow to the surface of the scalp, ” but there was no evidence of any sort of manual strangulation. A urine analysis was negative for alcohol and controlled substances, although positive for Benadryl and Ibuprofen.
Santa Cruz Police Sergeant Loran Baker met defendant at the police department around 9:00 or 10:00 p.m. on September 4, 2007. The department had been trying to locate defendant, and he was taken into custody when he arrived at the department. Defendant held up a piece of paper that he showed to Baker. Written on the paper was, “I’m confused and scared. I will not talk to anyone until someone can get Dr. Kumasaka here to talk to me.” Defendant had a blue notebook with him which was later seized. The following was written in the notebook: “September 4, 07. Koah, Tes and Quinn. I do not know what has happened but feel as if I cannot deal with it. I love you all so much and you and your mom are my life. Whatever I may have done or do is not your fault. [¶] When I do not return take this as my last will and testament as Morgan and I do not have one. Everything to the kids. I want Dawn and Doug Faber to have custody of you until you are on your own. Remember I have and will always love you more than anything. Love, dad, Marshall Doud.” The next page with writing on it said, “Going to S.C. police, please follow.” The next page with writing on it said, “My name is Marshall Doud. Is someone looking for me?” The next page with writing on it said, “Dr. First. [¶] I called and could not reach him. [¶] From the Summit Market.”
“Summit Market is written twice, the first in semi-cursive writing and the second printed.
Morgana’s sister Dawn Faber and Dawn’s husband Doug became the guardians of defendant’s children on September 4, 2007. When going through drawers in the Doud’s master bedroom closet within a few days after Morgana’s death, Dawn found a document in defendant’s handwriting that she gave to her brother to give to the police. The document says: “Why does my mind race and never get anywhere when it is time to stop? Why do I feel things I don’t want to feel? Why do I always want to do everything myself? What am I doing with my life? Do I really enjoy what I can do? ‘That’s the problem with being a tool.’ Why is doing looked down upon? I can do everything, but can I do everything? How can so much be going through my head without meaning anything? Is fear of spending, fear of losing control? What does she really think of me? Looks down at not going to sleep/waking up. Never kisses me good night, good morning. Never starts sex. Why don’t I ever chose? Does wanting it all mean I don’t care or it doesn’t matter which way? Or is all the choices jumbled into a whirl and I can’t get off anywhere? Why am I the one up and she is sleeping? Why do I make myself upset when I want to lash out?”
The Defense Case
Defendant testified in his own defense that he was the first one to go to bed on the night of September 3, 2007. He was already in bed when Morgana came upstairs. Because Morgana said that all their children were in bed, but a light was still on downstairs, defendant went downstairs to turn it off. Teslin was in the laundry room. He said good night to her and went back upstairs. Morgana was already asleep when he returned to bed. He got up around 1:30 a.m. to go to the bathroom, and decided to check on the salt water aquarium under the stairs. The aquarium was bought in early 2007 and was his and Quinn’s project. It contained a number of creatures that come out at night, and he did not get many opportunities to look at it at night. He put on his robe, went downstairs, and looked at the aquarium for five to 10 minutes. He then checked on his children, one after the other. He remembers walking down the hall looking at the fish tank and turning to go back upstairs. The next thing he knew, he was on the landing.
He awoke on the landing on the top of the stairs with an overwhelming sense of fear. He was crouched down, leaning against the wall, but he did not know how he had gotten there. He had no idea why he was afraid. It was dark but he could see out over the living room into the kitchen, the doorway to the deck on his left, and the doorway to his bedroom on his right. He had felt a similar fear once when he was in high school. Then, he had awakened from a dream and felt an overwhelming fear although the dream was not particularly scary. He realized that he was in his bed and that there was nothing to be afraid of. He eventually calmed down then and went back to sleep.
This time, defendant tried to think but he could not do so. His head was spinning and he could not concentrate. After a few minutes, he stood up. He was wearing just a robe. After a few more minutes, he came to the conclusion that he had to leave the house to get away from the fear. He went to his closet, put on some clothes, and went downstairs. He went into the kitchen for his keys and shoes and then went into the garage. He left the garage and went to his truck which was parked on the street in front of the house. He got in and drove away, although he did not have a destination in mind. He has a vague recollection of having lost memory again, like he did in December 2002.
One day in December 2002, his daughter called him at work, wanting to go surfing that afternoon. He did not think he could take the time off, but he decided to get a sandwich for lunch so he could eat at work and save time. While out, he stopped at a gas station. He remembers leaving the gas station for work, but remembers nothing else until he woke up in a tent in the middle of the woods in the mountains with snow on the ground. He did not know where he was, or what day it was, but it was getting dark so he went back to sleep. When he awoke again, he was still in the tent in the mountains. He did not recognize most of the equipment he had, and he had little food and no water. He had some maps which he used the next day to show him how to hike back to the trailhead. There he saw his truck and a sheriff who had a missing-persons flier with his picture on it. He realized that he was in Tuolumne County, a three-hour drive from Santa Cruz. When he got home, he started seeing a psychiatrist, Dr. Kumasaka.
This time, defendant drove to his work place in Scotts Valley without knowing why. He entered the building with his pass card, and went to his work space “on auto pilot.” He picked up a blank notebook and a small paper bag containing apricot seeds from his backyard. Because the apricot seeds are poisonous, he thought he might use them to commit suicide. He turned to leave, and then returned to grab a water bottle. He left, returned to his truck, and drove away.
The parties stipulated that the driving distance between defendant’s house in Santa Cruz to his place of work in Scotts Valley along the route he described was 6.7 miles.
The parties stipulated that defendant was videotaped by surveillance cameras at his place of work for about 10 minutes beginning approximately 3:35 a.m. on September 4, 2007. The parties further stipulated that the video shown to the jury accurately depicted defendant’s movements at his place of work on September 4, 2007, at the times reflected on the video.
He drove north on Highway 17 towards San Jose, but turned off on Summit Road and headed east. He parked in a pull-out and sat for awhile with thoughts flying through his head. He was still overwhelmed with fear. He ate some apricot seeds and drank some water, but made himself vomit when he decided that he was being stupid. He sat there awhile longer, then walked into the woods as the sun came up. He sat down against a rock and thought. He stayed there the whole day, and lay down and dozed off for a time. Late in the afternoon, he thought about how his psychiatrist had helped him after his earlier episode. As it was getting dark, he went back to his truck and drove back on Summit Road looking for a telephone. He found one at the Summit Market and tried to call Dr. Kumasaka. He was not able to get through, so he returned to his truck. He wrote a few notes in his notebook that he thought he might need, one of which was “Going to S.C. Police. Please follow.” He wrote that note in bold print because he intended to hold it up to the window to show it to anyone who tried to pull him over. He wanted to go to the police station because he assumed his family would be looking for him and he thought the police could contact Dr. Kumasaka. He also wrote, “My name is Marshall Doud. Is someone looking for me?” He intended to show the note to somebody at the police station in order to identify himself. He did not have to use either note, however.
When he arrived at the police station, he wrote down, “I am confused and scared. I will not talk to anyone until someone can get Dr. Andrew Kumasaka here to talk to me.” He took the notebook with him when he approached the building. The building’s doors were locked and he had to use an after-hours phone to contact somebody. When he was asked some questions, he started hyperventilating and could not respond. He did not identify himself. An officer came out and defendant showed him the note he had just written. He was ushered inside. He gave an officer his wallet as identification. After a few minutes he was taken to a room. Although officers asked him questions, he “couldn’t verbalize.” Therefore, he wrote, “How is my family?” The officers told defendant that his family was okay and that they would try to get his doctor. Defendant answered other questions the officers had by writing “I feel I’m barely holding it together. Talking is hard. Emotionally and mentally.” “Dr. First.” After the officers left him alone for approximately one half hour, he was able to collect himself and orally communicate with officers slowly, using short sentences.
The officers told defendant when Dr. Kumasaka arrived and asked him to sign a form. After he signed the form, they took him to see the doctor. He spoke to the doctor for a period of time while officers were in the room. Eventually the doctor left, but the officers continued talking to defendant. At some point, the officers told defendant that his wife was dead. He felt like he had been “hit over the back with a board.” He did not ask how his wife died and he did not ask about his children. He asked if he could continue talking to the officers later. When they said okay, he went to lie down on the couch and an officer took his notebook from him. He has no recollection of having written on the first page of the notebook a message to his children and a will.
Redacted videotapes of defendant’s police interviews with and without Dr. Kumasaka were played for the jury.
On September 3, 2007, defendant was not having marital problems. The papers found in the drawer in his closet were about 18 months old, and were all written at a time when, about an hour after he had gone to bed, he got up, went to his home office, and wrote about things he wanted to discuss with his wife. He did not kill his wife and he does not know who did. When asked on cross-examination if he was sure that he did not kill his wife, defendant responded, “I have no memory of killing my wife.” At the police station, officers showed him what Quinn had written that night. He attempted to read it but was not able to comprehend it. He said to the officers, “I’m not disputing what’s there. What I’ve been saying all along is I’ve told you everything I know.” Defendant meant that he did not dispute that Quinn had written the words, but that he could not confirm or deny what Quinn had written.
The Prosecution’s Rebuttal Evidence
Dr. James Missett, a clinical and forensic psychiatrist, testified that he became involved in this case in September 2007, but he has never talked with defendant. The prosecutor then asked Dr. Missett a series of hypothetical questions.
Dr. Missett was asked to assume “[t]hat at about 2:45 in the morning, a 15 year old boy hear[s] a scream which he thinks comes from his parent’s bedroom. About a minute or so after the scream, the son goes upstairs and there’s a landing at the top of the stairs. When he’s on the landing he meets his father. And his father says words to the effect, ‘It’s okay. Your mother had a nightmare. It’s under control. Go back to bed.’ ” Dr. Missett was then asked, “are those the acts of what you would call a conscious person, speaking of the father not the son, ” and Dr. Missett replied, “So far it would be the acts of a conscious person; that’s the father.”
Dr. Missett was asked to assume that, “The son goes back downstairs and some minutes later the father follows downstairs, goes first to his sister’s bedroom which is right across the hall from his, has a conversation with the sister in which he tells his sister your mom had a nightmare, everything’s under control. Goes across the hall to the son’s, repeats essentially the same story. The father goes back upstairs. [¶] Okay. About ten minutes later, father comes back downstairs, same conversation with the sister – daughter – at this point the son is in the bathroom which is adjacent to his sister’s room. He comes out, there’s dad. They have interaction. Go into the son’s bedroom, same conversation. Dad goes back upstairs. [¶] Third conversation about another ten minutes later. This time for whatever reason there’s no interaction with the daughter. Goes into the son’s room. Son says ‘I’m really scared, ’ or I’m scared. I want to talk to mom. Dad says, ‘Your mother’s sleeping. Go to sleep yourself. Everything’s fine.’ Okay? [¶] Father within 10 minutes of that event leaves the house.” Dr. Missett was then asked, “Starting from... the scream... and directing your attention to the acts of the father, are those the acts of a person who’s conscious of what he’s doing?” Dr. Missett responded, “As you described in the hypothetical, yes.”
Dr. Missett explained: “[I]n the hypothetical you say that whatever it is that’s going on started with a scream. And in the hypothetical when the father encounters the son, the father recognizes the son to the extent of saying, ‘Your mother had a – your mother’s okay.’ Also has a causal explanation as to the reason for the scream and the mother being okay. Meaning she had a bad dream. [¶] And then in the second encounter when the boy indicates an interest in seeing his mother, the father has another explanation and includes a causal explanation as to why the boy couldn’t or shouldn’t see the mother. And it’s the causal explanation; namely, ‘your mother is asleep, ’ these are the kinds of actions, namely, an ability to recognize a fact and to propose a cause for why somebody could or should do something or why a given set of facts is the case, that are indicative of a person who’s conscious and aware of cause and effect.”
“The hypothetical facts would in fact imply that the level of consciousness is such that whoever the individual – the person is – is able to give reasons for his or her position or thinking or advice, whatever it is he is saying to his son. That implies not only consciousness but a relatively high level of consciousness that involves an awareness of causes and effects. [¶] You should not go upstairs or you should not go see your mother because she is asleep. Or the reason this occurred was she had a bad dream. Cause is bad dream. Effect, scream. Cause, shouldn’t go up. Effect, you would wake her. That’s high level. That’s high level consciousness. It’s – you’re presuming that there is somebody who screamed, presuming there is somebody who might be asleep.”
Dr. Missett was asked to assume: “The father’s left the house at approximately 3:30 in the morning. Some 17, 18 hours later he shows up at a police station and after he tells the police, I remember getting up at 1:30 in the morning. The next thing I remember is leaving my house and arriving to work at sometime about 3:40 in the morning. I lost everything between 1:30 and 3:30.... He remembers getting his clothes when he left, the badge he needs to get in to work because that’s where he went when he left, work. He left the house; he drove straight to his work. It only took him about ten minutes. He went direct to work. I remember what he did at work and with one exception... every other event in the intervening 19 hours. Amnesiac only to 1:30 in the morning until the times he leaves.” “In the intervening two years, no memory of those two hours have been recovered.” The prosecutor then asked Dr. Missett, “Based on your training and experience, ... [i]s that a plausible claim of memory loss from your point of view?” He responded no. The prosecutor asked him, “Is that a plausible failure to recollect in your opinion?” He responded no.
Dr. Missett explained: “But it’s a modified no because there are many reasons why a person, even in a hypothetical, might fail to recollect something. We all fail in the course of an ordinary day to recollect things. [¶]... [¶]... [A] normal failure to recollect... would be just due to a failure of attention to what it is that’s going on. [¶] Another form of a ‘failure to recollect, ’ which is the reason for my caution in the answering of your question is what is called a dissociative... state. Dissociative... state is an experience that is reported not very often but it is reported and almost always follows a traumatic event, an extraordinary traumatic event, in that individual’s life and is accompanied by that individual usually w[a]ndering or going someplace. Sometimes a short distance, sometimes a long distance, sometimes for a short period of time. Sometimes for a long period of time. And then later stating ‘I don’t know how I got there.’ [¶] Now the important thing, if that is true, is that the [dissociative] state has to be in effect when the person is traveling. In the hypothetical, you said... is it possible that this person in the hypothetical had a loss of memory, with a loss of memory being restricted between 1:30 and 3:30. But with a travel apparently having started at 3:30. If that’s the case, the [dissociative] state and the accompanying inability to remember, you would have expected, would have included the entire traveling time. And not included any details of where the person was going in the hypothetical.... [¶] Other reasons for an inability to remember are that something happens with our brain. We have a stroke.... Or alternatively you have a blow to the head where you can demonstrate that there is damage to the structure and function of the brain. That’s a traumatically induced inability to remember. [¶] Or alternatively, you can have a situation where a person either as result of alcohol ingestion or... ingestion of some other substance is unable to remember what happened after the ingestion of that substance. [¶] But in the hypothetical you don’t mention anything about a stroke, you don’t mention anything in the hypothetical about a blow to the head and you don’t mention anything in a hypothetical about the ingestion of substances that would otherwise not uncommonly interfere with a person’s ability to remember. [¶] In the absence of that, namely inability to remember while traveling, you’d have to say it is not a plausible explanation for a claim of loss of memory. Even though it may have accompanied or followed a traumatic event....”
Dr. Missett was not “familiar with any cases in which a homicide by a method of asphyxiation, a homicide that takes a great deal of effort over a protracted period of time, compared to say a gunshot or a stabbing is done unconsciously, assuming a person is in good health, no stroke, no intoxication, no other mental defects or deficiencies.” It would not be something a person would do unconsciously because it requires time and directed effort. Based on his medical training, “at least a minute to unconsciousness [is] consistent” with strangulation by obstruction of the mouth and nose, and a minute of effort is “inconsistent with being unaware of what you’re doing.”
Verdict, Motion for New Trial, and Sentencing
On August 14, 2009, the jury found defendant guilty of first degree murder (§ 187.) On October 15, 2009, defendant filed a motion for new trial, contending that the court erred in refusing to give two jury instructions he had requested. The prosecutor filed opposition to the motion. On October 30, 2009, the court denied the motion for new trial and sentenced defendant to prison for 25 years to life.
DISCUSSION
Instruction on Involuntary Manslaughter
The court instructed the jury with CALCRIM Nos. 520 [Murder with malice aforethought], and 521 [Murder: degrees]. The court also instructed the jury pursuant to CALCRIM No. 3425 that defendant was not guilty of murder “if he acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. Someone may be unconscious even though able to move. [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when he acted. If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was conscious. If, however, based on all the evidence, you have a reasonable doubt that he was conscious, you must find him not guilty.”
Defendant requested that the court also instruct the jury on involuntary manslaughter as a lesser included offense of murder with a modified version of CALCRIM No. 580. Specifically, the first paragraph of his proposed instruction would have modified the standard instruction by adding the following italicized language: “When a person, who is not otherwise legally unconsciousness [sic], commits an unlawful killing, but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.” He argued that something “not quite reaching the aspect of a complete defense of unconsciousness should be considered with regard to acting without consciousness in the disregard of the risk of human life; therefore, gets you within the involuntary manslaughter instruction.”
In denying defendant’s request, the court stated in part: “We have a specific statement in the law.... [W]hether it’s first, whether it’s second, [unconsciousness] is a complete defense to it. And this Court is not going to, based on what’s been presented, is [not] going to create a new imperfect unconsciousness defense for involuntary manslaughter.”
On appeal, defendant contends that “[t]he instruction on involuntary manslaughter should have been given, because there was evidence that [he] did not possess the requisite malice or intent necessary for murder. The typical understanding of the word ‘intent’ involves the concepts of design and purpose. Where an actor is partially unaware of his actions, however, this design and purpose cannot exist. A person who is sleepwalking is not said to have intended his actions. A person who is substantially disoriented and, as a result, does not comprehend the consequences of his actions, is not said to have intended those actions.” “[T]he acts resulting in the death of [defendant’s] wife showed no more than partial consciousness. Partial consciousness would negate the knowledge or malice necessary for murder.”
The Attorney General contends that unconsciousness is a complete, not a partial defense to a criminal charge. “Although the defense of unconsciousness has existed in California at least since 1872, we are aware of no court that has recognized a defense of ‘imperfect unconsciousness’ or ‘partial consciousness, ’ nor any court that has concluded that diminished consciousness is a proper theory to support involuntary manslaughter instructions.”
“A criminal defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and an erroneous failure to instruct on a lesser included offense constitutes a denial of that right. To protect this right and the broader interest of safeguarding the jury’s function of ascertaining the truth, a trial court must instruct on an uncharged offense that is less serious than, and included in, a charged greater offense, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged greater offense are present. [Citations.] [¶] But this does not mean that the trial court must instruct sua sponte on the panoply of all possible lesser included offenses. Rather, ... ‘ “such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could... conclude[]” ’ that the lesser offense, but not the greater, was committed.” ’ [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 215.)
“Involuntary manslaughter is ordinarily a lesser offense of murder. [Citation.] ‘One commits involuntary manslaughter either by committing “an unlawful act, not amounting to felony” or by committing “a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) If the evidence presents a material issue of whether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would violate the defendant’s constitutional right to have the jury determine every material issue.’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 515.)
“Unconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge. (§ 26, class Four;...) To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist ‘where the subject physically acts but is not, at the time, conscious of acting. [Citation.] If the defense presents substantial evidence of unconsciousness, the trial court errs in refusing to instruct on its effect as a complete defense. [Citations.]” (People v. Halvorsen (2007) 42 Cal.4th 379, 417 (Halvorsen).) However, “[i]f someone dies as a result of actions of a person who was unconscious due to voluntary intoxication, then the killing is involuntary manslaughter.” (CALCRIM No. 626; see People v. Ochoa (1998) 19 Cal.4th 353, 423-424 (Ochoa).) “A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.” (CALCRIM No. 626; § 22, subd. (c).)
In this case, defendant, through his testimony, presented substantial evidence of unconsciousness. He testified that at the time his wife was killed, he was not conscious at all of his actions. He has absolutely no memory of his actions during that time. Accordingly, the court properly instructed the jury that unconsciousness was a complete defense to the murder charges. (Halvorsen, supra, 42 Cal.4th at p. 417; see also § 26, class Four [a person who commits a crime without being conscious thereof is not “capable” of committing the crime].) An instruction on involuntary manslaughter based on unconsciousness was required only if defendant presented evidence deserving of consideration that he was unconscious due to voluntary intoxication. (Halvorsen, supra, 42 Cal.4th at pp. 418-419; Ochoa, supra, 19 Cal.4th at pp. 423-424.) The record is lacking in any evidence that defendant was not conscious of his criminal actions due to voluntary intoxication. No witness testified that defendant consumed or used an intoxicating drug or drink in the minutes or hours immediately preceding defendant’s wife’s death. Accordingly, the trial court did not err in refusing to instruct on involuntary manslaughter as a lesser included offense of murder based on a theory of unconsciousness. (Ibid.)
We also find no error in the trial court’s refusal to instruct on involuntary manslaughter based on any other theory. Dr. Mason, the forensic pathologist, testified about the nature of Morgana’s injuries, the indications of a struggle, and the time it likely took to asphyxiate her. The record does not contain contrary substantial evidence from which a reasonable jury could conclude that, at the time of the killing, defendant was committing “an unlawful act, not amounting to felony” or was committing “a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) Rather, both Teslin and Quinn testified that they heard their mother’s screams, and that defendant thereafter told them that their mother had just had a bad dream and that everything was okay.
Instruction on Degree of Unconsciousness
Defendant requested that the court instruct the jury on unconsciousness as follows: “The degree of consciousness, not rising to legal consciousness, may reduce a murder from first degree to second degree and may reduce murder to involuntary manslaughter. The weight and significance of the degree of consciousness are for you to decide. [¶] If you conclude that the defendant committed murder, consider the degree of consciousness in deciding whether the crime was first or second degree murder. Also, consider the degree of consciousness in deciding whether the defendant committed murder or voluntary manslaughter.” Defendant argued that “the degree of consciousness or you can talk about the level of consciousness, should be considered by the jury, have this type of instruction to say that they consider this with regard to first and second degree murder affecting obviously the ultimately premeditation....” In denying defendant’s request, the court stated: “unconsciousness is a complete defense to the crime. This is not similar to provocation and in fact as we discussed in chambers there will not be a voluntary manslaughter instruction... given because there’s no evidence of provocation in this case.... [¶]... I don’t feel that this is an appropriate use of the consciousness defense in affecting the degree on the murder.”
On appeal, defendant contends that “a limited degree of consciousness would mitigate first degree murder to second degree murder in a similar manner” that provocation may mitigate first degree murder to second degree murder. “[T]he lack of complete consciousness, like provocation, could negate the likelihood that [he] made a ‘deliberate judgment.’... If [he] was only partially conscious at the time of his wife’s death, that fact affected premeditation, and the jury should have been made aware of that principle.” He further contends that “[a] partially conscious person could set events into motion which would inevitably result in death, and have sufficient time to prevent that death, but not have the cognitive ability to reflect on those implications. Therefore, the requested instruction could have allowed the jury to consider additional facets regarding premeditation and deliberation which were never made available to them.”
The Attorney General contends that “[a]lthough there may be degrees of [defendant’s] awareness of his surroundings, the defense evidence in this case shows only that [defendant] had absolutely no recollection of the events surrounding his wife’s death. There is no evidence of emotional trauma..., mental illness or defect. There simply is no basis whatsoever in this record to support a finding that [defendant] was ‘only partially unconscious, ’ that his reasoning was impaired, based on his testimony of total lack of recall.”
In this case, the court instructed the jury that, in order to find defendant guilty of first degree murder, it had to find that defendant acted willfully, deliberately, and with premeditation when he caused his wife’s death. The court further instructed the jury that the prosecution had the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime and that, if the prosecution did not meet this burden, it must find defendant not guilty of first degree murder. (CALCRIM No. 521.) In addition, as we stated above, because defendant testified that he was acting unconsciously at the time of Morgana’s death, the court properly instructed the jury that unconsciousness is a complete defense to both first and second degree murder. (CALCRIM No. 3425.) However, the court properly refused defendant’s request to instruct the jury on partial, or lack of complete, consciousness.
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citations]....’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) “In the case of defenses, ... a sua sponte instructional duty arises ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (Id. at p. 157; italics omitted.)
“The trial court, however, has no duty to... instruct on doctrines of law that have not been established by authority.” (People v. Michaels (2002) 28 Cal.4th 486, 529 (Michaels).) In the case of “pertinent matters falling outside the definition of a ‘general principle of law governing the case’ it is ‘defendant’s obligation to request any clarifying or amplifying instruction.’ [Citation.]” (People v. Estrada (1995) 11 Cal.4th 568, 574.) If an instruction “relates particular facts to an element of the charged crime and thereby explains or highlights a defense theory, ” it is “a ‘pinpoint’ instruction” and the trial court does not have a sua sponte duty to give it but is required to give it upon request. (People v. Mayfield (1997) 14 Cal.4th 668, 778; People v. Saille (1991) 54 Cal.3d 1103, 1119.)
Where there is no substantial evidence to support a requested pinpoint instruction, the trial court does not err in refusing to give it. “If the evidence should prove minimal and insubstantial... the court need not instruct on its effect.” (People v. Flannel (1979) 25 Cal.3d 668, 684 (Flannel), fn. omitted.) In addition, “a court has no duty to correct a proposed instruction which is partially incorrect and must avoid giving instructions which would tend to confuse the jury.” (People v. Gonzales (1992) 8 Cal.App.4th 1658, 1664 (Gonzales).)
Defendant’s theory of the case was that his wife was killed while he was acting unconsciously. However, the defense presented no evidence that defendant was anything other than legally unconscious when he acted. Defendant testified that he was not aware at all of his actions at the time of his wife’s death. He testified that he has absolutely no memory at all of his actions during that time. He did not testify to being partially conscious or partially aware of his actions. Thus, there was not substantial evidence supportive of an instruction on partial, or less than legal, unconsciousness, and the court was not required, either upon request or on its own motion, to give such an instruction. (Flannel, supra, 25 Cal.3d at p. 684; Breverman, supra, 19 Cal.4th at p. 157.) In addition, defendant cited no authority below, and cites no authority to this court, in support of his claim that partial unconsciousness, or something less than legal unconsciousness, can reduce a first degree murder to second degree murder. Accordingly, we cannot say that the trial court erred by refusing to give defendant’s proposed instruction on a doctrine of law that has not been established by authority. (Cf. Michaels, supra, 28 Cal.4th at p. 529; Gonzales, supra, 8 Cal.App.4th at p. 1664.)
Expert Testimony
Defendant contends that section 29 “provides that a mental health expert may not testify as to whether a defendant had a required mental state. That includes whether the defendant was conscious.” He further contends that the prosecutor’s “stratagem” of using hypotheticals “was improper. The hypotheticals were so detailed and so specific that they could only refer to [defendant]. Under such circumstances, the prohibition in [section] 29 against testimony as to whether defendant had a required mental state was repeatedly violated when the prosecutor was allowed to do indirectly by hypothetical questions what he was prohibited by [section] 29 from doing with direct questions.”
The Attorney General contends, citing People v. Coddington (2000) 23 Cal.4th 529 (Coddington), overruled in part on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, and People v. Nunn (1996) 50 Cal.App.4th 1357 (Nunn), that “such hypothetical questions are proper.”
Section 29 limits the type of expert evidence that may be admitted to establish whether the defendant actually formed the requisite intent. It provides: “In the guilt phase of a criminal action, 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, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.” “Rulings under this statute are reviewed for abuses of discretion. [Citation.]” (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1327 (Bordelon).)
“By its terms, section 29 prohibits an expert witness from giving an opinion about the ultimate fact whether a defendant had the required mental state for conviction of a crime. It prohibits no more than that.” (Ochoa, supra, 19 Cal.4th at p. 431.) Section 29 does not preclude offering as a defense the absence of a mental state that is an element of a charged offense or presenting evidence in support of or in opposition to that defense. It precludes only expert opinion that the element was not present. (Coddington, supra, 23 Cal.4th at p. 583.)
There is no prohibition on a psychiatric expert witness testifying in terms of the types of behavior or mental processes that can be expected from people who suffer from particular mental defects or diseases. The court in Nunn, gave the following examples of appropriate opinion testimony: “[The defendant] experienced several traumatic incidents related to his service with the Navy during the Vietnam War.... [S]uch experiences can result in a person overacting to subsequent stressful events.” (Nunn, supra, 50 Cal.App.4th at p. 1362.) It is further permissible for the expert to offer an opinion that “[the defendant], because of his history of psychological trauma, tended to overreact to stress and apprehension”; that “such condition could result in [the defendant] acting impulsively under certain particular circumstances”; or to “evaluate[] the psychological setting of [the defendant’s] claimed encounter with the [victims]” and to “offer[] an opinion concerning whether that encounter was the type that could result in an impulsive reaction from one with [the defendant’s] mental condition.” (Id. at p. 1365.) What the expert could not do “was to conclude that [the defendant] had acted impulsively, that is, without the intent to kill, that is, without express malice aforethought.” (Ibid.)
In Coddington, our Supreme Court reviewed a trial court ruling that no questions could be asked of the defense psychiatric expert by either the defendant or the People “about whether or how [the defendant’s possible mental] defect or disease would affect the defendant’s mental state or actuality, or if it would impair his ability to form an intent, deliberate, or premeditate, unless the psychiatrist would testify, out of the presence of the jury, that he believed that [the defendant] did not premeditate and deliberate the killings, ” a ruling the trial court “extended... to preclude any hypothetical questions regarding the effect of mental defect or illness on a person’s ability to deliberate or premeditate.” (Coddington, supra, 23 Cal.4th at p. 582.) The Supreme Court held that the trial court’s ruling “was an overly restrictive reading of the statutory limitations on admission of evidence of mental illness.” (Ibid.) “An expert’s opinion that a form of mental illness can lead to impulsive behavior is relevant to the existence vel non of the mental states of premeditation and deliberation regardless of whether the expert believed [the defendant] actually harbored those mental states at the time of the killing.” (Id. at pp. 582-583.)
Here, the prosecutor did not seek to elicit testimony from Dr. Missett on the ultimate question of defendant’s specific state of mind at the time defendant’s wife was killed. The prosecutor did not ask Dr. Missett whether a hypothetical person in defendant’s circumstances would have had the mental state required for murder, which would have been the functional equivalent of asking whether defendant himself had that intent. (Bordelon, supra, 162 Cal.App.4th at p. 1326.) Rather, by asking the hypothetical questions he did, the prosecutor was not asking Dr. Missett to testify to a state of mind that would prove or negate an element of the charged offense and Dr. Missett did not offer expert opinion testimony that a statutory mental state was or was not present in defendant’s case. The trial court properly allowed the prosecutor to question Dr. Missett about the compatibility of the behavior defendant testified to with acting while unconscious or in a dissociative state. (Nunn, supra, 50 Cal.App.4th at p. 1365.) Dr. Missett answered hypothetical questions based on other evidence that had been presented, which is a proper way of presenting expert testimony. “ ‘Generally, an expert may render opinion testimony on the basis of facts given “in a hypothetical question that asks the expert to assume their truth.” ’ [Citations.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 946-947.) Accordingly, defendant has not shown that the trial court abused its discretion in allowing the prosecutor to ask Dr. Missett the hypothetical questions he did.
Defendant separately contends that the trial court erred by allowing Dr. Missett to repeatedly testify that defendant’s explanation “was not credible.” “It violates the due process clause of the 5th and 14th Amendments to elicit lay or expert opinion testimony regarding the credibility of a person whom the witness does not know.” Acknowledging that trial counsel did not move to exclude Dr. Missett’s opinion testimony on this ground below, defendant argues that counsel’s failure to do so constituted ineffective assistance “because there could not have been any valid strategy for trial counsel to have declined to challenge Dr. Missett’s opinion on this ground, when trial defense counsel challenged his opinion on numerous other grounds.”
The Attorney General contends that defendant has forfeited his direct claim by failing to raise this objection below and that he was not prejudiced by counsel’s failure to so object. “In light of the strength of the evidence that [defendant] was well aware of his actions and that he recalled even minute details of his day after leaving the house, even if [Dr.] Missett’s testimony constituted an expert opinion on [defendant’s] credibility[, ] any error was harmless.” “Because [defendant] fails to establish error or prejudice, his claim of ineffective assistance of counsel must also [be] rejected.”
“A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings. [Citations.]” (People v. Price (1991) 1 Cal.4th 324, 440; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” (Strickland v. Washington, supra, at p. 697.)
“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) “ ‘Whether to object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1185.) “An attorney may choose not to object for many reasons, and the failure to object rarely establishes incompetence of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) “ ‘[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings.’ ” (People v. Riel, supra, 22 Cal.4th at p. 1197.) Thus, “where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. [Citations.]” (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Dr. Missett testified, in response to a hypothetical proposed by the prosecutor, that based on his training and experience the hypothetical was not “a plausible claim of memory loss” and not “a plausible failure to recollect.” Dr. Missett went on to explain the various reasons why a person could have memory loss or could fail to recollect something that had occurred. “The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert’s opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82; People v. Curl (2009) 46 Cal.4th 339, 359-360.)
We agree with defendant that, if the purpose or effect of Dr. Missett’s testimony was to render an opinion about defendant’s credibility, the testimony was inadmissible. (People v. Curl, supra, at p. 359.) However, the court instructed the jury with CALCRIM No. 332 on how to evaluate expert testimony and how to evaluate an expert’s answers to hypothetical questions. In addition, counsel may have made a reasonable tactical decision not to object to the testimony on the ground that Dr. Missett was rendering an opinion about defendant’s credibility. If the purpose of Dr. Missett’s testimony was to explain why and how memory loss and a failure to recollect can occur, the testimony was a proper subject of expert testimony. (Evid. Code, § 801 [expert may give an opinion related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact].) And, to the extent that the testimony was a proper subject of expert testimony regarding memory loss and a failure to recollect, it is not reasonably probable that the trial court would have excluded the testimony had defense counsel objected to the testimony on the ground that Dr. Missett was rendering an opinion as to defendant’s credibility. Accordingly, we cannot find that defendant was prejudiced by trial counsel’s failure to object to Dr. Missett’s testimony on the ground that he was rendering an opinion as to defendant’s credibility. It is not reasonably probable a more favorable outcome would have resulted had counsel objected to Dr. Missett’s testimony. (Price, supra, 1 Cal.4th at p. 440; Strickland v. Washington, supra, 466 U.S. at p. 697.)
Quinn’s Writings
Prior to trial, defendant moved in limine to exclude as inadmissible hearsay the writings Quinn made in his bedroom on the night his mother, defendant’s wife, was killed. The court ruled that the writings were inadmissible during the prosecution’s case-in-chief as hearsay, but that they could be used as needed to refresh Quinn’s memory during his testimony. The court also stated that it would revisit the issue following cross-examination. The prosecutor showed Quinn the writings, People’s exhibit No. 6, during his direct testimony and Quinn identified them, but neither the prosecutor nor defendant questioned Quinn about the contents of his writings.
Defendant was shown Quinn’s writings when he was at the police station the night after his wife was killed. Defendant testified that officers showed him what Quinn had written and that he attempted to read it but was not able to comprehend it. He said to the officers, “I’m not disputing what’s there. What I’ve been saying all along is I’ve told you everything I know.” Defendant testified that by saying what he did to the officers he meant that he did not dispute that Quinn had written the words, but that he could not confirm or deny what Quinn had written. After defendant identified People’s exhibit No. 6 as the writings shown to him at the police station, the prosecutor moved to admit the exhibit into evidence. The court asked defense counsel if he had any objection, and “overruled” counsel’s request to “[r]eserve until end of cross-examination.” Counsel did not state any objection to the admission of the exhibit at that time. Later, outside the presence of the jury, defense counsel stated that he intended to “just renew the same objections... I raised in the In Limine motions. I didn’t want to say that in front of the jury.” The court overruled defendant’s objection and admitted People’s exhibit No. 6 into evidence.
The trial court instructed the jury on adoptive admissions pursuant to CALCRIM No. 357 and on evidence of defendant’s statements pursuant to CALCRIM No. 358. During the prosecutor’s closing argument, he read to the jury without objection from a typewritten version of Quinn’s writings. We have put in the margin what the prosecutor read.
The court instructed the jury: “If you conclude that someone made a statement outside of court that accused the Defendant of a crime and the Defendant did not deny it, you must decide whether each of the following is true: [¶] (1) the statement was made to the Defendant or made in his presence. [¶] (2) the defendant heard and understood the statement. [¶] (3) the Defendant would, under all the circumstance[s], naturally have denied the statement if he thought it was not true. [¶] And (4) the Defendant could have denied it but did not. [¶] If you decide all of these requirements have been met, you may conclude Defendant admitted the statement was true. [¶] If you decide that any of these requirements have not been met, you must... not consider either the statement or the defendant’s response for any purpose. [¶] You have heard evidence that the Defendant made oral or written statements before the trial. You must decide whether the defendant made any of these statements in whole or part. [¶] If you decide that the Defendant made such statements, consider the statements along with all the other evidence in reaching a verdict. [¶] It is up to you to decide how much importance to give to the statement. [¶] Consider with caution any statement made by the Defendant tending to show his guilt unless the statement was written or otherwise recorded.”
“What could it have been? It was nothing I’d ever heard. At first I thought it was just a blood curdling scream coming from upstairs but no that wouldn’t have had this effect on me.”
Defendant now contends that Quinn’s writings were inadmissible hearsay, and that the trial court’s error in admitting them into evidence violated his Sixth Amendment right to confrontation. The Attorney General contends that Quinn’s writings were properly admitted as adoptive admissions, and that defendant forfeited any objection to admission of the evidence on confrontation grounds by failing to raise the objection below.
“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) “Simply stated, and as a general rule, if a party to a proceeding has made an out-of-court statement that is relevant and not excludable under Evidence Code section 352, the statement is admissible against that party declarant.” (People v. Castille (2005) 129 Cal.App.4th 863, 875-876, fn. omitted (Castille); Evid. Code, § 1220 [“Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party”].) “ ‘Evidence Code section 1220 covers all statements of a party, whether or not they might be characterized as admissions. [Citations.]’ [Citation.]” (Castille, supra, at p. 876, italics omitted.)
Evidence Code section 1221 “generally permits hearsay to be admitted against a party, when that party has adopted it or agreed that a statement, originally made by someone else, is true. The statute contemplates either explicit acceptance of another’s statement or acquiescence in its truth by silence, equivocal or evasive conduct.” (Castille, supra, 129 Cal.App.4th at p. 876, fns. omitted; Evid. Code, § 1221 [“Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in the truth”].) “ ‘There are only two requirements for the introduction of adoptive admissions: “(1) the party must have knowledge of the content of another’s hearsay statement, and (2) having such knowledge, the party must have used words or conduct indicating his adoption of, or his belief in, the truth of such hearsay statement.” [Citation.]’ [Citation.]” (Castille, supra, at p. 876, italics omitted; see also People v. Davis (2005) 36 Cal.4th 510, 535.) “ ‘[A] typical example of an adoptive admission is the accusatory statement to a criminal defendant made by a person other than a police officer, and defendant’s conduct of silence, or his words or equivocal and evasive replies in response. With knowledge of the accusation, the defendant’s conduct of silence or his words in the nature of evasive or equivocal replies lead reasonably to the inference that he believes the accusatory statement to be true.’ [Citation.]” (People v. Silva (1988) 45 Cal.3d 604, 623-624; People v. Jennings (2010) 50 Cal.4th 616, 661 (Jennings).)
“ ‘For the adoptive admission exception to apply, ... a direct accusation in so many words is not essential.’ [Citation.] ‘ “When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the person’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements in his presence.” [Citation.]’ [Citation.]” (Jennings, supra, 50 Cal.4th at p. 661.)
Here, Quinn’s writings were not offered to prove their truth; they were offered to give meaning to defendant’s implied admission to the police (“I’m not disputing what’s there”) that he was responsible for causing Quinn’s mother’s screams, that thereafter he checked on Quinn and Teslin and told them their mother had had a bad dream, and that he would not let Quinn check on his mother. Although defendant later testified that he meant his statement to the police to mean only that he could not confirm or deny what Quinn had written, the credibility of that testimony was for the jury to decide. And, pursuant to the trial court’s instructions, if the jury believed that testimony by defendant, then the jury could not consider Quinn’s writings or defendant’s response for any purpose. (CALCRIM No. 357.) Accordingly, we reject defendant’s contention that the trial court erred in admitting Quinn’s writings into evidence.
To the extent that defendant contends that admission of Quinn’s writings violated his right of confrontation, we reject that contention as well. “ ‘[I]t is well settled that an adoptive admission can be admitted into evidence without violating the Sixth Amendment right to confrontation “on the ground that ‘once the defendant has expressly or impliedly adopted the statements of another, the statements become his own admissions, and are admissible on that basis as a well-recognized exception to the hearsay rule.’ ” [Citation.]’ [Citation.] ‘Being deemed the defendant’s own admissions, we are no longer concerned with the veracity or credibility of the original declarant....’ [Citation.] Stated another way, when a defendant has adopted a statement as his own, ‘the defendant himself is, in effect, the declarant. The “witness” against the defendant is the defendant himself, not the actual declarant; there is no violation of the defendant’s right to confront the declarant because the defendant only has the right to confront “the witnesses against him.” [Citations.]’ [Citation.]” (Jennings, supra, 50 Cal.4th at pp. 661-662.)
Defendant’s Statements During the Guardianship Proceedings
During his cross-examination of defendant, the prosecutor sought to admit, and defendant sought to exclude, evidence relating to discussions that occurred during the guardianship proceedings for defendant’s and his wife’s children. Defense counsel argued that the discussions “deal with resolutions and negotiations in connection with the civil aspects with the family and children all of that and the house. And I think the civil discussions in trying to resolve things short of actual litigation should remain confidential and privileged.” “I think it’s protected areas within the Evidence Code.” The court ruled, “I disagree. After reviewing... Evidence Code section 1152 and the cases cited therein as well as [section] 1153.5 the objection is overruled as to [exhibits No.] 55, 56 and 64.” Exhibit No. 55 is a three-page letter defendant wrote to his children. Exhibit No. 56 is an eight-page list defendant prepared of personal property in his house which includes his statements as to what he wants done with the property. Exhibit No. 64 is a letter defendant wrote to Dawn Faber, his wife’s sister who became his children’s guardian. The prosecutor subsequently cross-examined defendant regarding the contents of the documents.
On appeal, defendant contends as he did below that Evidence Code sections 1152 and 1153.5 precluded introduction of the exhibits. “The privilege in Evid. Code [sections] 1152 and 1153.5 applies to criminal cases and criminal actions such as this.” “These statutes protect statements made during settlement discussion in order to encourage forthrightness and candor in those discussions.” “The admission of the settlement documents, and the letters discussing them, and the cross-examination of [defendant] on the settlement documents were prejudicial because of the way the prosecutor used them. The prosecutor used those items to imply through cross-examination that [defendant] cared more about his things than his family. The prosecutor also used those settlement documents to imply that [defendant] cared more about his things than his wife.... The cross-examination tended to challenge [defendant’s] credibility when he said that he loved his wife, and that there was no reason for him to kill her.”
The Attorney General contends that the provisions of Evidence Code sections 1152 and 1153.5 “do not apply here.” We agree with the Attorney General.
Evidence Code section 1152, subdivision (a) provides: “Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.” Evidence Code section 1153.5 provides: “Evidence of an offer for civil resolution of a criminal matter pursuant to the provisions of Section 33 of the Code of Civil Procedure, or admissions made in the course of or negotiations for the offer shall not be admissible in any action.” Code of Civil Procedure section 33 provides: “A prosecuting attorney, in his or her discretion, may assist in the civil resolution of a violation of an offense described in Title 13 (commencing with Section 450) of Part I of the Penal Code in lieu of filing a criminal complaint.” Title 13 of the Penal Code encompasses crimes against property.
The trial court properly found that Evidence Code section 1153.5 is not applicable to the facts of this case. The section applies when a prosecutor has attempted to assist in the civil resolution of a matter involving a crime against property (e.g., arson, burglary, forgery, larceny, embezzlement, extortion). Although Evidence Code section 1153.5 precludes admission “in any action” of evidence of statements made during negotiations for resolution of the civil matter (ibid.), defendant was not charged with a crime against property under Title 13 of the Penal Code, but with a crime against a person under Title 8 of the Penal Code. (§ 187.)
The trial court also properly found that Evidence Code section 1152, subdivision (a), did not preclude the admission into evidence of exhibit Nos. 55, 56, and 64. Section 1152 does not have any application to criminal cases. (People v. Muniz (1989) 213 Cal.App.3d 1508, 1515, disapproved on another point by People v. Escobar (1992) 3 Cal.4th 740, 749.) Moreover, defendant had previously prepared a writing requesting that his sister-in-law be appointed his children’s guardian, and he was not requesting a resolution of his criminal charges through the writings that constituted the exhibits. Therefore, defendant’s statements to his children and to his sister-in-law in the documents regarding his requests for the disposition of his property, including his house, were not offers “in compromise” of either the criminal charges against him or of the guardianship proceedings. (Id. at p. 1516.) Rather, the statements were admissible as statements of a party. As such, the trial court did not err in admitting the exhibits. (Ibid.; Evid. Code, § 1220.)
Cumulative Error
Defendant contends that his conviction should be reversed for cumulative error. “If, as here, errors are cumulatively prejudicial, that violates the 5th and 14th Amendments’ due process clause.” As we have found no prejudicial error, we must reject this contention.
DISPOSITION
The judgment is affirmed.
WE CONCUR: PREMO, ACTING P.J., GROVER, J.
Judge of the Monterey County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
“Stomach aching. Heart throbbing like never before. It came from pure fear and spread like a disease. We all know it’s there. Cure or no cure, after you find fear in pure form it changes. It it makes you past a point in your life where there’s no turning back. If there’s a cure, it’s happiness. But finding happiness in a moment like this isn’t easy.”
“I don’t know if it’s possible. You may think the fear is gone but it’s not. Most if it has moved on, left you for someone else, but you’ve been marked. You will never live the life you just left. Even if you can rid yourself of all the fear you can, you are just one step back from that cliff. True you might not be scared but you’re worried, paranoid, over thinking every situation you’re in and even ones you are not in. Finding happiness in the aftershock of fear is like finding dry sand at the bottom of the sea. It’s only possible in some unrealistic mythical way. It’s something you can’t do by yourself for me. I’m not sure what I’ll do. All I know is I won’t be sleeping any time soon. Time passes quickly. Stars are whizzing by. My family’s been marked, at least I have and my mom. Whatever just happened, I’ll get to the bottom of it if there is one. That noise, it hurt me. It damaged me. Damaged my soul. Yet it was a calling. There were three screams. And if you count I’m the third child, probably just a coincidence but still out of three children why am I the one who is affected. Only God knows, if there is one. On the third scream my soul left me for a better place where who knows it maybe moved on to new body. Maybe given to another third. I don’t feel so good. I’m worried. I hope everything is okay. Right now I’m lost. I’m at the same point as you wherever you are reading this.”
“I’m not so sure what’s going to happen next either. Maybe she did just have a bad dream. A very bad dream or was it more? I said I’d get to the bottom. I’ll try but thinking about it now what am I even trying to get to the bottom of? It’s like the end[.]”
“[I]t’s like looking into the cool, blue Santa Cruz ocean. Murky as can be. You’ll see as far as you think you can see but no further. For all either of us know this could turn out to be some crazy murder mystery. I don’t even know yet. I’ll figure out. Maybe you will too. But you will have to make that decision.”
“I need to sleep but I don’t think I can. There’s too many thoughts. Too many possibilities running through my head. It’s like I’m stuck in a good book, one that makes you think a lot or like a TV show how they always have this cliff hanger ending where all you can do for a week is wait and think. Well, I’m waiting and I’m thinking. But there’s nothing there. Why am I waiting? Why am I thinking? Why aren’t I sleeping? I don’t know why but I’m writing all my thoughts so I’ll just keep writing.... I think what is really keeping me awake is the paranoia, the sneaking suspicion, ... I know it’s not true and everything is okay, that my very own father caused the screams, the fear inspiring this writing. Why was he so protective checking on me and my sister so carefully.”
“So carefully not letting me see her. Was there something wrong with her or was it for my own good or has he explained this before or is he just a great father I want him to be and he knows what he’s doing. I’m not really sure at all. All I know is I need your help whoever you may be. Help. Fear.”