Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF078132. Bernard J. Schwartz, Judge.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Jeffrey J. Koch, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER, Acting P. J.
Defendant and appellant Peter Gallardo Espinoza appeals after he was convicted of the first degree murder of Alan Doyle. He contends that the trial court erred in refusing his requested instructions on voluntary intoxication and in striking the testimony of an expert on the effects of alcohol abuse. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Alan Doyle, the victim, and several friends went to a concert on the night of November 29, 1997. They left the concert theater, near the Corona Mall, after midnight, i.e., on November 30, 1997. The teenagers decided to go to a taco stand nearby for something to eat. When they arrived, however, the inside dining area was closed.
Doyle and his friends saw some people, including defendant, either sitting in or standing near a car at the drive-up window of the taco stand. As Doyle and his companions started to walk away, defendant yelled at them, saying things like, “punks must die,” and “We don’t like devil worshipers. Devil worshipers must die.” Defendant and the others in the car also challenged the boys, asking them where they lived.
Doyle and his friends left to return to the Corona Mall area. As they started to enter the mall’s parking lot, they heard a car drive up. Defendant approached on foot, demanding to know, “Where are you from.” Before anyone could answer, defendant stabbed Doyle in the stomach and ran back to the car.
Doyle’s friends called for emergency help. Police arrived a few minutes later, about 1:00 a.m. Doyle was taken to the hospital, but died of his wound; defendant’s blade had punctured Doyle’s stomach, liver and aorta.
Mark Lara worked at the taco stand. Earlier in the evening, at 10:00 p.m. on November 29, 1997, he had returned home to wait for some friends. Two brothers, Tom and Tim, arrived accompanied by defendant. They decided to get something to eat. Lara drove the group to the taco stand in Tim’s car. Defendant was in the right rear passenger seat. Lara heard defendant shouting something from the backseat. After they picked up their food at the window, Lara heard the back door open and saw defendant running toward the Corona Mall. A short time later, defendant returned and jumped back in the car.
Lara drove home. Eventually, defendant left with Tim. When Tim returned to pick up his brother, defendant was no longer with him. Lara did not see defendant again.
A few days after the stabbing, on December 3, 1997, defendant’s mother, Sally Lopez, contacted police Detective Ronald Anderson. Lopez told Detective Anderson that a few days before the killing she had picked up defendant, who had just turned 18, on his release from juvenile hall. Defendant told Lopez that he was really angry and could kill someone. Lopez said that defendant often carried a knife or ice pick.
Lopez also reported that her daughter Cecilia had told her that defendant had bragged about stabbing someone at the Corona Mall. Lopez’s ex-husband, Ricardo, had also told Lopez that defendant had mentioned stabbing someone at the mall. Lopez informed police that defendant might have gone to live with his grandparents in Mexico.
Defendant remained at large and the crime went unsolved for several years. In 2005, the United States Marshall reported that defendant had been detained for illegally entering the United States. Defendant was deported. Eventually, defendant was arrested in Mexico and returned to California to stand trial.
Defendant’s trial took place in May and June 2006.
Defendant did not testify at trial. He presented the testimony of Melinda Mendoza, who had been defendant’s girlfriend in 1997. She had been 15 years old at the time. In November 1997, Mendoza had known defendant for a couple months. On November 29, 1997, Mendoza was at home between 4:00 and 6:00 p.m. Defendant arrived with a group of friends. At some point during the evening, Mendoza’s mother left the house.
Mendoza testified that there were two or three cases of beer and a bottle of whisky in the house. Mendoza and several of the others were drinking both the beer and the whisky. Defendant was in and out of the house that evening. Mendoza did not know how much alcohol defendant had actually consumed, but she herself had drank about eight beers between 8:00 p.m. and midnight.
At about midnight, defendant and some of his friends left to get something at the taco stand, which was located about 15 minutes away. Defendant did not return until approximately 3:00 a.m. According to Mendoza, defendant looked scared, pale and sweaty; he also appeared to be “really drunk.” Defendant then passed out on the bed and slept until the next day.
A jury convicted defendant of first degree premeditated murder, and found true an allegation that defendant had personally used a deadly weapon, a knife, in the commission of the crime. The court sentenced defendant to a prison term of 26 years to life.
Defendant appeals.
ANALYSIS
The Court Properly Struck the Expert Testimony on Intoxication and Properly Refused Instructions on Voluntary Intoxication
The defense basically conceded that defendant was the killer and focused the defense on the issue of intent. The defense theory, as outlined in opening argument, was that defendant was so intoxicated that he did not form the requisite specific intent for premeditated first degree murder. The defense argued that the offense should thus be mitigated to manslaughter, based on voluntary intoxication.
A. Trial Evidence
The evidence presented in the prosecution’s case-in-chief did not show that defendant was intoxicated. None of the victim’s companions saw defendant stumble or stagger, and no one observed him to slur his words or otherwise give any indication that defendant was intoxicated. Defendant’s friend, Mark Lara, who drove the car to the taco stand, denied that anyone had been drinking that night.
As noted, Mendoza testified about defendant’s drinking on November 29, 1997. Mendoza testified that defendant was not drunk when he and his friends arrived at Mendoza’s house in the afternoon. She saw defendant and his friends sharing and drinking the whisky. Mendoza was not sure how much beer defendant had drank.
At some point during that night, Mendoza thought defendant was drunk. She knew he had vomited, but could not remember whether defendant kept drinking after he vomited. Defendant was stumbling when he was outside.
Defendant left to go to the taco stand and did not returned until 3:00 a.m. At that time, defendant came back with a person Mendoza did not know. They went into Mendoza’s bedroom. Defendant was sitting on the bed and the other person was standing by the closet. Mendoza thought something was wrong because defendant was pale and sweaty. He smelled of alcohol. Defendant was not very responsive to Mendoza’s inquiries. Defendant’s companion left, and defendant went to sleep.
The next morning, when defendant woke up, he had a short conversation with Mendoza. Defendant told Mendoza that he and his friends had run into “some kids” at the taco stand. Defendant related that he had gotten out of the car and pulled his hand out of his pocket to hit “this guy.” When defendant pulled his hand out of his pocket, he had a knife in his hand. The people in defendant’s car were telling him, “Let’s go,” so defendant returned to the car, and they left the scene.
On cross-examination, Mendoza indicated that she herself had drank about eight beers between 8:00 p.m. and midnight. She was not drunk; she was “a little bit buzzed.” She could still walk, talk and think. When she asked defendant to go get some food at the taco stand at about midnight, defendant was “pretty drunk,” although he also could walk and could talk understandably. Mendoza was able to tell defendant what she wanted him to order for her. She expected that he was able go to the taco stand, make the order, pay for it, and come back with the food. Mendoza and defendant were able to talk and to understand one another at that time.
Mendoza saw “maybe two” people drinking from the whisky bottle, but she was not sure. In addition, as the people went in and out of the house, the whisky bottle was also taken in and out. Mendoza saw defendant take sips from the whisky bottle. She said he had taken more than one sip, but did not know how many. She did not know whether he had sipped from the bottle more than 10 times, and added, “[b]ut he drank a lot.”
Defendant had a beer in his hand whenever Mendoza saw him that evening. He came and went from the house several times. He would be gone for about 45 minutes each time; each time defendant returned, he appeared more drunk than when he had left. Defendant was more drunk than any of the friends who were with him.
At the conclusion of Mendoza’s testimony, the defense proposed to call Dr. Kalechstein as an expert witness. The prosecution objected, arguing that Mendoza’s testimony was insufficient to support voluntary intoxication instructions or the testimony of an expert witness: “She’s testified, generically, that the defendant was drunk. [¶] She has testified that he was able to walk, that he was able to talk, that she trusted him to go to Del Taco for her. [¶] . . . I think the case law is very clear that there needs to be substantial evidence of intoxication that actually impaired the defendant’s ability to premeditate, deliberate, and form a conscious thought. And I do not believe that Ms. Mendoza’s testimony rises to that level. It’s too vague, it’s too general, and the best she gives us is things that occurred before midnight and things that occurred after 3:00 in the morning.”
Defense counsel argued that Mendoza had personally seen defendant drink from the whisky bottle, and he had a can of beer in his hand each time she saw him that night. Mendoza had described defendant as drinking “constantly,” and that he was drunker than any of his friends. He was drunk enough to throw up at some time that evening before going to the taco stand. Counsel argued that, “Just because he was able to walk and talk does not establish that he was sober or that he wasn’t impaired.”
The court proposed to admit the expert testimony provisionally. The court opined that the testimony so far was inadequate to support a voluntary intoxication instruction and that the expert testimony would be unlikely to add any further basis for the instruction. Nevertheless, pending defendant’s decision whether or not to testify on his own behalf, the court would allow Dr. Kalechstein to testify.
Dr. Kalechstein testified about his credentials in the field of substance abuse. For his testimony at trial, he did not review any police reports of this incident. He also did not interview defendant. He had not interviewed any witnesses or heard their testimony, so that he had “no idea” how much alcohol defendant had drank in this particular case.
Dr. Kalechstein testified that alcohol intoxication may be detected by certain symptoms, such as impaired motor functioning (e.g., tripping or stumbling) or slurred speech. If a person does not slur words or does not stumble, however, that would not necessarily indicate that the person was not intoxicated. An intoxicated person might be able to walk and talk, but could still have other functions affected, such as the ability to make decisions or the ability to inhibit inappropriate responses. An intoxicated person might become aggressive, might become irritable, and might have impaired judgment.
Dr. Kalechstein testified about numerous studies of alcohol and its effects on behavior. The data consistently showed that alcohol was associated with a risk of increased aggression. Frontal lobe functioning, affecting the judgment, can be impaired with a blood alcohol level of .02 or .03 percent, much lower than the .08 percent demarcation for drunk driving offenses.
Dr. Kalechstein acknowledged that different people respond differently to alcohol, and that a person still might be able to perform basic motor functions. Defense counsel posed a hypothetical concerning a person who had consumed 16 beers in four hours; Dr. Kalechstein opined that there was a “good chance” that such a person would be intoxicated. If that person also consumed some hard liquor in the same period, that “would increase the likelihood that they were intoxicated at that time.” A person under such circumstances might not be stumbling or slurring words. Such a person could possibly make a calculated decision about something of importance, although Dr. Kalechstein opined that the person “would be much more likely to act without thinking.” Dr. Kalechstein could not predict whether a person in those circumstances would become aggressive: “[I]t’s hard to predict the nature of aggression, and that’s really essentially because when people are drunk they act in ways that are unpredictable.”
Dr. Kalechstein’s testimony related to probabilities: A person who is not intoxicated is “more likely” to make good decisions, to inhibit impulses to act angrily, to think of the consequences of their actions, and to make calculated decisions. A person who is intoxicated is “less likely” to make calculated decisions, but “more likely” to undertake risky actions without inhibiting impulses.
On cross-examination, Dr. Kalechstein testified that alcohol consumption did not necessarily prevent a person from being able to consciously formulate a goal and take steps to achieve that goal. In addition, it is possible for an intoxicated person to inhibit an angry impulse, such as refraining from hitting someone, or to calculate potential consequences, such as moving a victim from an open area to a more secluded one to carry out an attack. Dr. Kalechstein reiterated that he had not reviewed any police reports or seen or heard any witness testimony. He testified simply about “the general effects of alcohol and behavior, and in addition . . . there are areas of the brain affected as a result of that.”
On redirect examination, Dr. Kalechstein indicated that alcohol consumption is a risk factor for, e.g., domestic violence. An intoxicated person may have considered the consequences of, for example, hitting someone, but it would be less likely that he or she did so. Intoxicated persons can nevertheless be quite goal-directed in their behavior.
All of Dr. Kalechstein’s testimony was predicated on the assumption that someone is intoxicated. If a person is not intoxicated, then alcohol intoxication is removed as a factor affecting brain function.
After Dr. Kalechstein had testified, defense counsel secured defendant’s personal agreement not to ask for voluntary intoxication instructions, and a personal waiver of defendant’s right to testify, in order to preclude the prosecution from introducing some jailhouse recordings to rebut defendant’s claim of intoxication.
The recordings included a telephone call by defendant to his sister, informing her of his arrest. Defendant told his sister that he did not know how he had been found, but he told the police that he did not know anything. In a second telephone call, defendant urged his sister, “Remember, I was in Stockton at a wedding,” but defendant’s sister said, “No.” In light of the preliminary hearing testimony of defendant’s father that defendant had not attended the wedding, the implication of the recording is that defendant was attempting to manufacture an alibi. Two of the recordings were of defendant’s telephone calls to his brother, after the preliminary hearing. In these calls, defendant described Mendoza’s testimony (i.e., of defendant’s alcohol consumption) as so much “bullshit,” again indicating that the defense evidence was fabricated. In two additional recordings, defendant explained to his brother in detail about defendant’s movements that weekend—defendant was picked up from juvenile hall, he went to Mendoza’s house on the Friday (November 28, not November 29), his brother took him to Mira Loma for the weekend, he did not go to the wedding in Stockton because he was angry with his father—all constituting, in the People’s view, a second attempt to create a false alibi. The People further argued that all the recordings negated the evidence that defendant was intoxicated at the time of the killing.
The next day of trial, defense counsel reversed course and did request voluntary intoxication instructions. The court reiterated its view that the evidence was insufficient to support instructions on voluntary intoxication with respect to defendant’s actual formation of any specific intent. Mendoza could not attribute any specific amount of alcohol to defendant; she could not be sure what he drank. She did testify that he appeared drunk, to her, but she did not observe defendant at or near the time of the killing, which took place between 1:00 and 1:30 a.m., on November 30. Defendant left Mendoza’s house near midnight and did not return until 3:00 a.m. Every other witness, both the friends of the victim and defendant’s companion, Mark Lara, testified to the contrary. No other witness observed defendant behaving as if drunk, and Lara was specific that no one in the car had been drinking. Certainly, there was no evidence tying any possible intoxication to defendant’s actual formation of, or failure to form, the requisite mental state for the charge of first degree premeditated murder. The court did not foreclose defendant from recalling Mendoza or another witness to testify on the issue of voluntary intoxication.
Defense counsel’s efforts to find Mendoza to recall her to the stand were fruitless. The defense then rested without calling defendant as a witness.
After the closing arguments, the court reconsidered its decision to leave the expert testimony on the record, albeit without having given any instructions on voluntary intoxication. Once defendant had elected not to testify, and in the absence of any voluntary intoxication instructions, the expert’s testimony became irrelevant. Defense counsel objected and asked the court to reconsider its decision not to give the voluntary intoxication instructions. The court admonished the jury that Dr. Kalechstein’s testimony was stricken from the record and the jury was not to consider it for any purpose during its deliberations.
After the verdicts were returned finding defendant guilty of first degree murder, defendant moved for a new trial. Defense counsel argued that the verdict was contrary to the law and the evidence, because Mendoza’s testimony provided substantial evidence that defendant was actually intoxicated at the time of the crime. Mendoza had testified that she saw defendant drinking for hours at her house before he left to go to the taco stand. Whenever she saw him, he had a beer in his hand. He had been drinking out of the whisky bottle with his friends. Over the course of the evening, Mendoza saw defendant become drunker and drunker. She had never seen him so drunk, and he was more drunk than any of his friends. He came and went from the house, but every time he came back, he was more drunk than when he had left. Mendoza had offered, in essence, a lay opinion that defendant was intoxicated. Counsel argued that the testimony of the victim’s companions should be discounted because their opportunity for observation was brief, and that Lara’s testimony should be viewed with caution because he had previously lied to police about the case. Defense counsel argued that the evidence was therefore sufficient enough to “merit consideration” by the jury as to whether defendant was so intoxicated that he did not actually form the required specific mental state.
The People responded that the issue was not whether defendant “could” premeditate, deliberate, or harbor malice aforethought, but whether he actually “did” premeditate, deliberate, or harbor malice aforethought with respect to the killing. Mendoza testified that defendant had been in and out of the house over a period of approximately six hours. She described defendant as “drunk,” but indicated no objective symptoms of intoxication. Mendoza’s testimony did not indicate that, whatever level of intoxication defendant may have had, he was unable to premeditate, deliberate, or form a specific intent to kill.
The court denied the motion for new trial.
B. Contentions and Standards of Review
On appeal, defendant phrases his claim in constitutional terms: That the refusal of voluntary intoxication instructions and the striking of the expert testimony resulted in a denial of due process, denial of a fair trial, and denial of the right to present a defense. More specifically, however, defendant argues that the court acted arbitrarily in denying his motion for a new trial, inasmuch as voluntary intoxication was defendant’s sole defense theory, and Mendoza’s testimony should have been sufficient to warrant an instruction. In addition, defendant complains of the refusal to give the voluntary intoxication instructions.
Citing People v. Waidla (2000) 22 Cal.4th 690, 733, and People v. Manriquez (2005) 37 Cal.4th 547, 58l, 584, defendant argues that the standard of review on appeal for giving or refusing instructions is de novo. The People urge, and defendant acknowledges, however, that the trial court’s denial of a motion for new trial is reviewed for abuse of discretion. (People v. Staten (2000) 24 Cal.4th 434, 466; People v. Davis (1995) 10 Cal.4th 463, 524.)
In any event, we conclude that, regardless of which standard of review is applied, the court’s rulings were proper and defendant is not entitled to a reversal of his conviction.
C. The Evidence of Defendant’s Intoxication Was Insubstantial
“ ‘[T]he trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury’s understanding of the case.’ (People v. Carter (2003) 30 Cal.4th 1166, 1219.) In addition, ‘a defendant has a right to an instruction that pinpoints the theory of the defense [citations]; however, a trial judge must only give those instructions which are supported by substantial evidence. [Citations.] Further, a trial judge has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence.’ (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) ‘A party is not entitled to an instruction on a theory for which there is no supporting evidence.’ (People v. Memro (1995) 11 Cal.4th 786, 868.)” (People v. Roldan (2005) 35 Cal.4th 646, 715.)
A defendant is entitled to an instruction on voluntary intoxication only when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s actual formation of a required specific intent. (See People v. Roldan, supra, 35 Cal.4th 646, 715, citing People v. Williams (1997) 16 Cal.4th 635, 677.)
Here, the only evidence suggesting that defendant may have been intoxicated was Mendoza’s testimony. Ultimately, however, Mendoza was unable to say how much alcohol defendant drank. He was out of her observation for much of the time in question. She saw defendant with a can of beer in his hand each time she saw him, but she had no idea how much he had in fact consumed. The most she could say as to the whisky was that defendant had taken more than one sip from the bottle. There was no evidence to establish any particular quantity of alcohol that defendant had consumed on the night of the offense.
Defendant left Mendoza’s house at approximately midnight. The killing took place approximately between 1:00 and 1:30 a.m. Mendoza did not see defendant again until approximately 3:00 a.m. There was no evidence at all to show that defendant was actually intoxicated at the time of the crime. Further, there was utterly no evidence, whatever level of intoxication defendant may have had, to show that the intoxication affected defendant’s actual formation of any particular mental state. To the contrary, the evidence did not demonstrate any mental impairment. Defendant was able to walk and to communicate without difficulty. None of the victim’s friends observed any signs of impairment. They were able to understand defendant clearly, and no one saw defendant stagger. Lara, defendant’s friend, also testified expressly that no one in the car had been drinking.
Defendant’s own actions showed that he acted purposefully and intentionally. A few days before the incident, he told his mother he was so angry he wanted to kill someone. He regularly carried a knife. On the date of the killing, defendant initiated an unprovoked confrontation at the taco stand parking lot, yelling at the boys that they were “punks” or “devil worshipers” because of the rock-band T-shirts they wore. He also issued gang or territory challenges, asking the boys “where are you from?” The boys avoided the confrontation and walked away. As Lara proceeded away from the taco stand toward his home, passing by the mall, defendant did not leave well enough alone, but deliberately got out of the car when he saw the boys again. He walked up to them, and repeated his gang challenges, demanding to know “where are you from?” He did not wait for a reply, however, but immediately plunged his knife into Doyle’s stomach. Nothing in the entire sequence bespeaks any mental impairment, but rather demonstrates clear, deliberate, conscious intentionality.
The evidence was insufficient to support a voluntary intoxication instruction.
In view of the insufficiency of the evidence to support voluntary intoxication instructions, the expert testimony on the general effects of alcohol consumption was irrelevant. In the absence of any substantial evidence of defendant’s intoxication at the time of the crime, there was no foundation to support any expert testimony on the effects of alcohol intoxication. Dr. Kalechstein’s testimony was general and nonspecific. He had no idea whether defendant had consumed any alcohol at all, and had neither reviewed any police reports nor interviewed any witnesses, not even defendant himself. The generic testimony about the effects of alcohol was not tied to any meaningful evidence in the case, and especially did not provide any basis upon which to conclude anything with respect to defendant’s actual formation of any particular mental state. Only relevant evidence is admissible. (Evid. Code, § 350.) The court has broad discretion to determine what evidence is relevant, but it lacks discretion to admit irrelevant evidence. (People v. Heard (2003) 31 Cal.4th 946, 973.) Dr. Kalechstein’s testimony was irrelevant. The trial court properly struck the expert testimony.
In light of the propriety of the court’s initial rulings, concerning the instructions and the striking of irrelevant evidence, the court’s denial of the motion for new trial was necessarily also proper, as those rulings were the sole ground raised in the motion.
To the extent that defendant urges he was deprived of a fair trial because he was precluded from arguing to the jury the sole defense presented (i.e., voluntary intoxication), we reject that contention as well. Defendant was not precluded from presenting additional evidence on the issue. Defendant attempted to locate Mendoza to recall her to present additional testimony. His counsel was unable to do so. Defense counsel complained that additional witnesses were unknown or unavailable, but that was because defendant had fled the jurisdiction for eight years. Defendant could himself have testified concerning his alcohol consumption and his mental state from any alleged intoxication, but if he had done so, he would have been impeached by recordings of his jailhouse communications. Defendant was offered a full and fair opportunity to present all the evidence at his disposal on the issue of voluntary intoxication; the evidence ultimately presented, however, was simply not sufficient to warrant an instruction on the chosen theory of defense. “As a general matter, the ‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.’ ” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
A recording of defendant’s telephone call to his brother, after Mendoza’s preliminary hearing testimony, showed: “Defendant: Cause look it, she’s stating that I was all . . . drunk and . . . then she . . . says that she asked . . . me to go to Del Taco for her. How . . . are you saying he was so . . . drunk and all that . . . and why would you ask me to go to Del Taco for you? [¶] Rick: Without a car. [¶] Defendant: They even picked liquor that I was drinking . . . Crown Royal . . . like what the f***? They even making up liquors . . . like what . . . is going on with these fools. I was shaking my head, but they didn’t . . . what the f***. They some crazy s*** man.” This recording appears to indicate defendant’s own belief that Mendoza’s testimony concerning his drinking was false.
No ground for reversal appears in connection with the refusal of the voluntary intoxication instructions, the striking of Dr. Kalechstein’s testimony, or the denial of defendant’s motion for new trial.
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., KING, J.