Opinion
C087105
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN MATTHEW GIORDANO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16F508)
Defendant Stephen Matthew Giordano appeals his conviction for first degree murder of his father, contending the trial court erred in giving unmodified jury instructions on voluntary intoxication and mental impairment. He claims this error precluded the jury from considering his methamphetamine use and posttraumatic stress disorder (PTSD) in determining whether his flight from the scene reflected consciousness of guilt. We conclude there was no instructional error and affirm the judgment.
FACTS AND LEGAL PROCEEDINGS
In the months prior to killing his father, defendant lived with his parents, Sal and Carole. During that time, his behavior was erratic and volatile, he would "manifest[]" and "prophes[ize]," and experienced delusional thinking. Defendant had also threatened to kill Sal a few times with his "bare hands." A week or two before killing his father, he tried to choke a fellow church minister. Two days before he killed Sal, defendant again threatened to kill Sal. On that occasion, Sal and Carole barricaded themselves in their bedroom. Defendant continued to rage and threaten Sal. Carole called the sheriff's department, who could not assist her. Carole later called defendant's brother who picked up defendant at his parent's home.
Defendant returned to his parent's home a couple of days later and appeared peaceful and remorseful. They agreed he could stay the night. Carole left to pick up some medications for Sal. When she returned home, Sal was lying on the floor in a pool of blood, between the bathroom and bedroom, with a large gash in his neck. She called 911 and reported her son had killed her husband. When deputies arrived, defendant was not at the home.
Defendant had gone to his friend Art Koon's house, where he had also been earlier in the day. He asked Koon if he could clean up, and washed his hands and boots. They watched television together and Sal's killing was reported on the news. Koon asked defendant if he had done it and suggested defendant turn himself in. Instead, defendant went into the bathroom and started talking about a demon taking him over. Koon called his neighbor and asked her to call the police.
When sheriff's deputies arrived approximately 45 minutes later, defendant was still in the bathroom speaking unintelligible "gibberish." He appeared to be under the influence of a stimulant drug, but officers did not locate methamphetamine or paraphernalia in a search of defendant. Officers asked defendant to come out and he did not. It took about 20-30 minutes for the officers to get defendant to comply and come out of the bathroom. Eventually, upon Koon's request, defendant left the bathroom. Officers noticed fresh injuries to his hands, apparent blood stains on his pants and boots, apparent brain matter on his pants, and trace of hair on his boots.
Sal died from multiple blunt force injuries, having been choked and severely beaten about the head and body. The injuries were consistent with being stomped on by a cowboy boot. The blood spatter patterns were also consistent with Sal having been hit with the bottom of a cowboy boot. Sal had a laceration so deep on his cheek that it exposed the roots of his teeth. Injuries on his thighs and scrotum suggested he had been kicked. He had a number of defensive wounds and his thumb was partially torn off. He was hit multiple times in the head. He was on the ground when the majority of blows were struck.
DNA samples taken from defendant's blood-stained pants matched Sal, as did stains from Koon's bathroom sink. Defendant's bloody palm print was on the door between the bedroom and bathroom where Sal's body was found.
Defendant tested positive for methamphetamine, just above typical therapeutic levels. Methamphetamine use can cause paranoia, delusional thinking, hallucinations, violence, and psychosis. It could not be determined when defendant ingested the methamphetamine. Koon had not seen defendant use any methamphetamine and had never seen defendant under the influence of methamphetamine.
Officers searched defendant's truck and found clothes, boots, suitcases, toiletries, and a bible. There was no methamphetamine or paraphernalia in the truck.
A forensic psychologist met with defendant and diagnosed him with pervasive development disabilities and early onset chronic PTSD. PTSD can affect a person's ability to control impulses and actions. Methamphetamine use would exacerbate the symptoms of PTSD, specifically as to impulse control, reasoning, judgment, and perception of reality.
A jury found defendant guilty of the sole count of first degree murder (Pen. Code, § 187, subd. (a)) and the trial court sentenced him to 25 years to life.
DISCUSSION
Defendant contends the trial court erred in giving the jury unmodified instructions on voluntary intoxication (CALCRIM No. 625) and mental impairment (CALCRIM No. 3428), arguing the instructions as given, limited the jury's ability to consider his mental impairment and voluntary intoxication in determining whether his flight from the place of the murder reflected consciousness of guilt. The People contend that: (1) defendant invited the error; (2) the claim is forfeited; (3) there was no error; and (4) if there was error it was harmless.
During the instruction conference, the trial court said it would give CALCRIM Nos. 625 (voluntary intoxication) and 372 (flight demonstrating consciousness of guilt). Defense counsel did not object or request any modifying language. The next day the court and the parties had further discussions, this time regarding whether to instruct the jury with CALCRIM No. 3428 (mental impairment), based on the forensic psychologist's testimony. Defense counsel agreed to the language of the instruction given.
CALCRIM No. 625 as given, provides: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation.
"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.
"You may not consider evidence of voluntary intoxication for any other purpose."
CALCRIM No. 3428, as given, provides: "You have heard evidence that the defendant may have suffered from a mental disease or disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime.
"The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: malice aforethought and premeditation and deliberation. If the People have not met this burden, you must find the defendant not guilty of first-degree murder."
CALCRIM No. 372, as given, provides: "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
The People claim defendant invited the error by agreeing to the instructions as given. " 'The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a "conscious and deliberate tactical choice" to "request" the instruction.' [Citations.]" (People v. Weaver (2001) 26 Cal.4th 876, 970.) The doctrine of invited error does not apply "in the absence of any clear tactical purpose on defense counsel's part in agreeing" to the instructions given. (People v. Townsel (2016) 63 Cal.4th 25, 59.) There is no such indication of a clear purpose here, therefore, invited error does not apply.
" 'A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.' [Citation.] However, even without a request, a defendant may argue the court erred in instructing the jury 'if the substantial rights of the defendant were affected thereby.' (§ 1259.)" (People v. Johnson (2015) 60 Cal.4th 966, 993.)
Defendant contends additional instructions were necessary to adequately instruct the jury on his defense that his voluntary intoxication and mental impairment impacted his ability to reason and form the requisite mental state including whether his flight from the scene reflected a reasoned decision. "If he were correct (as we explain, he is not), error in not giving the instructions would have affected his substantial rights. Accordingly, the claim is not forfeited." (Johnson, supra, 60 Cal.4th at p. 993.) Courts have addressed similar arguments on the merits. (People v. Townsel, supra, 63 Cal.4th at pp. 59-60; People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1406-1407; People v. McGehee (2016) 246 Cal.App.4th 1190, 1203 (McGehee).)
Defendant relies on our decisions in McGehee and People v. Wiidanen (2011) 201 Cal.App.4th 526 (Wiidanen) to support his contention. Both Wiidanen and McGehee involved instructions that defendant's knowingly false statements could be evidence of consciousness of guilt. We concluded in each case that if defendant's voluntary intoxication or mental impairment prevented the defendant from knowing his statements were false, the statements were not probative of his consciousness of guilt. (McGehee, supra, 246 Cal.App.4th at p. 1205; Wiidanen, at p. 533.) Accordingly, in Wiidanen, we concluded it was error for the trial court to instruct with both the consciousness of guilt instruction and an unmodified voluntary intoxication instruction (Wiidanen, at pp. 528, 533) and in McGehee we concluded it was error for the trial court to instruct with both the consciousness of guilt instruction and an unmodified mental impairment instruction. (McGehee, at pp. 1204-1205.) Both Wiidanen and McGehee ultimately concluded the error was harmless. (McGehee, at pp. 1206-1207; Wiidanen, at p. 534.)
Unlike McGehee and Wiidanen, this case involves flight from the scene as reflective of a consciousness of guilt. " '[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.' " (People v. Visciotti (1992) 2 Cal.4th 1, 60.) "[C]onsciousness of guilt" means " 'consciousness of some wrongdoing' rather than 'consciousness of having committed the specific offense charged.' " (People v. Bolin (1998) 18 Cal.4th 297, 327.)
Both flight and making a knowingly false statement are acts to avoid detection or apprehension and may evidence a consciousness of guilt; that is, the predicate act of either flight or making a knowingly false statement may raise an inference that the person understands they have committed a wrong and has made an effort to avoid being held responsible for that wrong. Neither McGehee or Wiidanen hold that evidence of intoxication or mental impairment alone impacted the defendant's ability to know what he had done was wrong and to make efforts to avoid responsibility. Rather, they each held that voluntary intoxication or mental impairment impacted the defendant's ability to commit the predicate act; that is to make a knowingly false statement, a statement the defendants understood to be false. The inference of consciousness of guilt could not be made in those cases if the predicate act had not occurred. The predicate act of a knowingly false statement has a mental component which could be affected by voluntary intoxication or mental impairment. The predicate act of flight has no such mental component. Accordingly, the trial court properly gave unmodified instructions on voluntary intoxication and mental impairment.
DISPOSITION
We affirm the judgment.
/s/_________
HULL, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
RENNER, J.