Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. NS063580, Gary J. Ferrari, Judge.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Nicholas Harvey appeals from the judgment of his convictions for first degree murder and residential burglary as well as the special circumstance that the murder was intentionally committed for financial gain. He claims the trial court erred in: (1) restricting the defense expert’s testimony concerning whether he experienced a steroid facilitated rage reaction when he committed the murder and the effect of anabolic steroids on a person’s intent; and (2) failing to instruct the jury with CALJIC No. 3.32 concerning the relationship of a mental disease or illness to intent. Harvey further claims his trial counsel was ineffective for failing: (1) to request jury instructions concerning voluntary intoxication; (2) to seek the suppression of his “involuntary” statements to the police concerning his involvement in the plot to kill the victim for financial gain; and (3) to object to the admission of certain statements to police concerning whether he had been set-up and desire to take revenge on others involved in the plot. As we shall explain, none of appellant’s claims have merit. First, the court did not abuse its discretion, nor was Harvey deprived of his right to present a defense when the court placed limitations on the defense expert’s testimony concerning steroids. The court’s ruling was consistent with the law and the court gave the defense expert wide latitude at trial to discuss the effects of steroids. With respect to the claims concerning the jury instructions, Harvey did not present substantial evidence to support either the mental disease or the voluntary intoxication instructions. Finally, Harvey’s statements to police were properly admitted, because they were voluntary and relevant. Accordingly, we affirm the judgment.
FACTUAL & PROCEDURAL HISTORY
The Crimes.
In the fall of 2004, the victim Lynn Schockner and her husband Manfred Schockner were in the process of getting a divorce. At the time Mrs. Schockner lived in the family home in Long Beach with the couple’s 11-year-old son. Mr. Schockner lived elsewhere.
At about 11 in the morning on November 8, 2004, police were dispatched to the residence to check on a possible burglary based on a neighbor’s report that he had observed a suspicious person, later identified as the appellant Harvey, in the alley near the rear of the residence. When the police arrived they formed a perimeter around the residence. Mrs. Schockner was the only one at home at the time and when she saw the police at the window of her home, they directed her to come outside to speak with them. The officers told Mrs. Schockner about the neighbor’s report and she responded that everything was fine. The officers told her they wanted to check her backyard, but the gate was locked. Mrs. Schockner stated she would retrieve the key for the gate and went inside the house. The officers went to the side gate and waited for her.
When the officers realized Mrs. Schockner had been gone for awhile they decided to look for her. One of the officers yelled to her and another proceeded towards the backyard. The officer near the backyard saw Harvey jumping over the fence from the backyard into the alley. Harvey attempted to hide himself in an alcove and after repeated orders to come out, Harvey eventually complied. According to the officers, Harvey’s demeanor was very calm and compliant. When the officers searched Harvey they found he had a black beanie containing items of jewelry, a cell phone, a stun gun, latex gloves with fresh blood on them and a dagger-style knife.
Officers became concerned about Mrs. Schockner and returned to the house. They entered and found two of the bedrooms had been ransacked, with drawers pulled out and items tossed upon the floor. Costume jewelry and other trinkets were on the floor near the walk-in closet in the master bedroom. Police found blood on the master bedroom light switch, the carpet, the dresser, on the bedroom door leading to the backyard and on the sliding glass door leading to a back patio area. When officers went outside, they found Mrs. Schockner dead, lying in a pool of blood in the patio area.
Harvey was arrested and transported to the police station. At the police station, on the same day (November 8), Harvey was advised of his Miranda rights. He waived his rights and agreed to speak with the police detectives. He stated he had gone to the residence to commit a burglary when Mrs. Schockner discovered him in the backyard. He told officers that he accidentally stabbed her in the neck while tackling her to the ground. He told officers that he then went inside the house and took a few items before he left. Harvey was interviewed again the next day and told the officers the same information.
Thereafter on November 10, 2004, the police searched Harvey’s car. The police obtained the cell telephone records of Harvey as well as Mr. Schockner and a third person, Frank Jaramillo. The records showed a pattern of calls (at least 118) among the three men in the months and days leading up to the crimes. The police believe that based on the times of the calls and call patterns on November 8, 2004, that Mr. Jaramillo was some kind of a “go-between” for Harvey and Mr. Schockner.
In his car the police found, among other things, a business card for Mr. Schockner with the address of the Long Beach residence written on the back. The police also found syringe needles and bottles of liquid Testosterone.
After receiving this information, detectives interviewed Harvey again on November 10 and presented the evidence of the telephone calls. During this interview, Harvey admitted that he had been hired by Frank Jaramillo, at the direction of Mr. Schockner to kill Mrs. Schockner and to stage the murder to look like a burglary. He said that he had been paid $2,500 up front and was promised $2,500 when the job was finished. Harvey was given the address of the home and a description of the layout of the house. He was told where to locate Mrs. Schockner’s jewelry, the home’s alarm code and a copy of Mrs. Schockner’s schedule. He told the police that he travelled to Long Beach to conduct surveillance on the house several times and that a week before he bought a dagger and a stun gun. He also stated that he had paid a friend to drive him to the location. Nonetheless, Harvey maintained that he did not intend to kill Mrs. Schockner. He said that after entering the backyard he became very frightened and sat near the door contemplating whether he could go through with it. He told police that he considered not going through with it and thought about calling Jaramillo and offering to pay back the $2,500 advance. He said that he was about to abandon the job when Mrs. Schockner found him in the backyard and confronted him. He told the detectives that he did not plan on attacking or killing her, but the family dog began barking and Mrs. Schockner screamed so he grabbed her and tackled her to the ground and they began to struggle. He said that he felt the dagger hit her neck and she started bleeding Harvey said after he stabbed her he decided to complete the burglary because he was afraid of Mr. Schockner.
He told officers that he had already spent the $2,500 on furniture and moving expenses.
During the November 10 interview Harvey also stated that because the police had arrived so quickly he suspected he had been set-up.
Harvey was charged with willful, deliberate and premeditated first-degree murder and first degree residential burglary with the special allegations that the murder was committed for financial gain and during the commission of a burglary.
Jaramillo and Mr. Schockner were also charged along with Harvey, but Harvey’s trial was severed from that of his co-defendants. Jaramillo was convicted of first degree murder for financial gain and his conviction has been affirmed on appeal (case No. B200435). As of the filing of the opening brief, Mr. Schockner was still awaiting his trial.
The burglary special circumstance was dismissed.
The Trial.
During the trial, in addition to the testimony of the police officer witnesses, detectives who interviewed Harvey and the presentation of the November 10 interview to the jury, the prosecution also presented evidence concerning Mrs. Schockner’s injuries. According to the medical examiner who conducted Mrs. Schockner’s autopsy, she had 10 injuries from a sharp object, including three stab wounds and seven incise wounds. Specifically she had a fatal 5-inch stab wound on the right side of her neck and a smaller stab wound and an incise wound on the left side of her neck. The other stab wound was to her upper back and the other incise wounds were to the back of her hands. The medical examiner stated that the wounds were consistent with Mrs. Schockner trying to cover her neck with her hands and defend against the knife attack. The examiner stated that although some of the wounds could have been accidental, the wound to the right side of her neck and her back were not consistent with an accident.
Harvey also testified during the trial. He told the jury that he lived in Ventura, was a body builder and worked as a personal trainer and bouncer. He admitted that he bragged to friends about being a “hit man.” He told the jury that he had been regularly taking excessive amounts of anabolic steroids for four years prior to his arrest. He testified that the steroids affected him physically; they made him stronger and bigger and helped him with his workouts. He also stated that they also made him more aggressive and intense and that while taking them he had mood swings and felt easily angered and frustrated. He further testified that he felt he was addicted to steroids, that he craved them and during periods when he was cycling off of the drugs he would feel depressed and aggressive.
Concerning the events just before the attack, he told the jury that as he sat in the backyard of the Schockner residence he began to have second thoughts about going through with the murder. He said he felt scared, nervous, uneasy and a little frustrated. He said that as he was thinking about what to do, Mrs. Schockner appeared unexpectedly. He said he was surprised and startled and he panicked. He grabbed her out of fear because he said he was afraid of being caught and wanted to stop her from screaming He said that they fell to the ground and during that process he accidentally stabbed her. He testified that he did not realize that he had stabbed her until he saw the blood. He said he did not know and did not remember how the stab wounds happened.
Harvey also presented testimony from Dr. Ronald Siegel, a pyschopharmacologist and research professor from UCLA. Dr. Siegel testified regarding the physical and emotional side-affects of anabolic steroids use and abuse, particularly the steroids Harvey stated he was taking.
The jury convicted Harvey of both charges and found the financial gain allegation. Harvey was sentenced to life without the possibility of parole on the murder count and a concurrent sentence of eight years on the burglary count.
Harvey appeals.
DISCUSSION
Harvey’s claims on appeal center on three general areas: (1) the limitations the court imposed on the expert testimony concerning the effects of steroids; (2) the jury instructions relating to his mental state; and (3) his counsel’s failure to suppress his November 10 statement to police. We examine these matters in turn.
I. Expert Testimony Concerning Steroids
Background
Harvey sought to defend this case on the theory that he lacked the specific intent for first degree murder. Specifically he argued the murder was an accident and unintentional—at the time of the attack he was “dissociated and that his reaction was caused by persistent abuse of anabolic steroids.”
Outside the presence of the jury the court conducted a lengthy Evidence Code section 402 hearing to determine the admissibility of evidence Harvey sought to offer from Dr. Siegel in support of the theory. At the outset of the section 402 hearing Harvey argued that he was seeking admission of testimony from Dr. Siegel specifically for the opinion “that during the attack on the victim [Harvey] was experiencing a steroid facilitated rage reaction.”
Initial Evidence Code Section 402 Hearing
During the hearing that followed, Dr. Siegel explained his qualifications and background, and he indicated that he had interviewed Harvey and had reviewed Harvey’s statement to police and the other discovery in the case. Dr. Siegel described for the court the physical and psychological effects of steroids—that steroid abusers report feeling overpowered by aggression, fear, that they feel disassociated during the attacks. He further stated that given Harvey’s history of steroid use, Harvey was a steroid abuser and that during the attack Harvey experienced a “steroids facilitated rage reaction.”
Dr. Siegel described his background as his being an expert pyschopharmacologist who specialized in the study of illegal drugs and other controlled substances and their effects on behavior, especially violent behavior. He said that the abuse of steroids was among a number of substances that he has studied and served as a consultant to a number of entities including the FDA and the Department of Justice. He admitted that a very small portion of his work was devoted to steroid issues, that he had not published any articles on the issue of the effects of steroid abuse, and that he did not think his peers would consider him an expert on steroids. He stated, nonetheless, that he had seen hundreds of patients in his clinical practice who had abused steroids and has given lectures on the subject of the effects of steroid abuse. He also conceded that there were not a lot of published studies concerning the psychological effects of steroids and admitted that his opinion as to the correlation between steroid use and aggression was essentially based on his years of clinical experience. At the conclusion of the first section 402 hearing the court expressed reservations about whether Dr. Siegel qualified as an expert on the issue of the effects of steroids. Nonetheless, after the second section 402 hearing the court appeared satisfied that Dr. Siegel was qualified to offer an opinion concerning steroids.
According to Dr. Siegel, Harvey reported a constant intensity, moodiness, frustration, lack of tolerance, paranoia about his girlfriend, and violent outburst toward his mother, in which appellant threatened to kill her, and that all of these behaviors developed as a result of his chronic abuse of steroids. Dr. Siegel reported that Harvey told him that when discovered and confronted by Mrs. Schockner in the backyard, Harvey felt an overpowering emotion of fear.
Dr. Siegel opined Harvey reacted from fear and was overwhelmed by that emotion which triggered a rage reaction in appellant and he became “disconnected.” In Dr. Siegel’s opinion, appellant’s report of his feelings at the time of the homicide was consistent with a classic steroid facilitated reaction and the wounds on Mrs. Schockner’s body were consistent with a rage killing.
He also testified the effect of steroids on human brain is similar to that of PCP. He stated that to the extent that a person voluntarily ingests steroids it is analogous to voluntary intoxication.
Defense counsel argued Dr. Siegel's opinions were relevant on the issues of malice and whether appellant had deliberated and premeditated the homicide. Defense counsel argued the abuse of steroids affected appellant’s behavior and that he uncontrollably reacted out of fear when he killed Mrs. Schockner.
The court expressed doubts about admitting Dr. Siegel’s testimony, noting hearsay concerns, reservations concerning whether the evidence was relevant, and whether the testimony would be confusing and misleading. Nonetheless, the court stated it would reserve the ruling and reconsider the matter after Harvey testified.
Second Evidence Code Section 402 Hearing
After Harvey testified before the jury the court conducted an additional section 402 hearing. During the second hearing Dr. Siegel again explained the effect of steroids on the limbic system. He testified that steroids may not have any measurable affect on the fear reaction of a human being and explained the term that “facilitate rage” as follows:
Facilitated -- I choose that word very, very carefully because I didn’t want to say that this is a steroid roid rage reaction defense, because it’s not. I’m not postulating that, offering that or even saying that it’s present here, I don’t think it is. I don’t think we have a mental state defense, we have an explanation and the explanation is what I call steroid facilitated. It has primed the body of this individual for that, not only physically primed him but socially it has primed him, it has put him in a situation where he has been in an occupation of weight lifting and body training where it has pumped him up. It has put him in an occupation of where he can test it as a bouncer. It has also put him in an occupation where he can dream about as he said yesterday being a Hulk or dream about killing somebody, of testing himself even further. It has primed him that way, it has facilitated the whole production of that. Not to say that that wouldn’t have happened without it but it happened with it. And that’s conspicuous.
Then the rage – the use of the word rage is twofold: one is to use his word that he gave me and also the slang term that’s normally associated with this phenomena, which I don’t think it’s exactly proper, and also to connote some of the details of the crime itself, that this had the pattern of a rage killing, this was ten stab wounds, this was more than one fatal wound, two fatal, a third potentially fatal. This, in my opinion and in my experience, is overkill. The record is 96 stab wounds in three minutes during a rage reaction, including the defendant stabbing himself in the thigh a couple times.
This is why I’m using the word rage, this is my background, this is my data and reasoning for using that particular word that it fits those profiles. Just like the steroid facilitated word fits the profile of a steroid abuser, including the increase in aggression, the fact that violence has been noted, including murder has been noted in steroid abusers and, so, it fits again the profile whether it’s caused or not, it just happens to happen with a lot of steroid abusers.”
When asked whether steroids would have an impact on a fear reaction, Dr. Siegel stated that what he had heard from “hundreds of users” was that it “is overpowering emotion that they have during their aggressive attack. They are fearful.”
Thereafter when questioned by the court to evaluate Harvey’s testimony that he did not intend to kill Mrs. Schockner, Dr. Siegel stated that Harvey described his intentional conduct of “scoping out” the residence, making the plans and getting the weapons, but that just before the murder Harvey also expressed second thoughts and doubted whether he should go through with the murder. The court then asked whether Dr. Siegel was saying that abuse of steroids would have no impact on one’s ability to form intent, Dr. Siegel answered in the affirmative. When asked whether steroid abuse would impact the specific mental states required for first degree murder, including malice and premeditation, Dr. Siegel initially expressed reluctance to respond stating that it was really for the jury to answer. Nonetheless, when pressed Dr. Siegel offered this explanation:
“It’s not that a person doesn’t have the cognitive ability to premeditate, harbor malice, consider right and wrong, make decisions, weigh consequences, it’s just that those higher thinking areas, that judgment is suspended because the limbic system, which is governing those emotions that are triggered by steroid rage reaction or steroid facilitated one, are taking over, they are dominant. They are the ones that are controlling behavior and they are bypassing the higher cortical areas. [¶] But the capacity still exists there but it can’t – it’s not in communication. You become governed by raw emotions, the limbic system area of the brain not by the higher thinking areas, you’re not using your head, you’re not –you’re thinking through your rage . . . . [¶] So, it’s not that it prevents the person from having those abilities, it’s just that they are suspended, they are not in touch with it.”
At the end of the second section 402 hearing, Harvey argued that Dr. Siegel should be permitted to testify that abuse of steroids can directly affect the ability to form the specific mental states for first degree murder. His counsel conceded, however, that the expert could not testify concerning “what was in my client’s head at the time or what my client was feeling at the time” but that he should be permitted to testify that Harvey’s “behavior was consistent with what happens when somebody abuse[s] steroids.” Thereafter the court ruled that it would not permit Dr. Siegel to testify that at the time of the killing Harvey was suffering from a “steroid facilitated rage reaction.” The court observed that it felt there was no relevant testimony as to that and that it was confusing and misleading under section 352. Nonetheless, the court stated that Dr. Siegel could testify as to how steroids affect people generally, without offering specifics as to Harvey on the day of the murder.
Dr. Siegel’s Trial Testimony
Thereafter during the trial Dr. Siegel testified regarding the physical and emotional side effects of anabolic steroids use and abuse, particularly the steroids Harvey stated he was taking. Dr. Siegel told the jury that steroids made a person detached and dissociated and that the drugs operated upon the limbic system to suspend the reasoning (cortical) centers of the human brain from the emotional areas of the brain. He said that anger, rage and fear are controlled by the limbic system and that anabolic steroids can trigger a person’s limbic system to kick-in and block off and suspend a person’s ability to think clearly. He told the jury that steroids cause addiction, mood swings, depression, confusion, impulsivity, paranoia, aggressiveness and violent behavior. He discussed “roid rage” that sometimes results causing a person to snap and overreact violently and aggressively to small things. He testified that during a rage reaction, the person may not be able to recall what had occurred. He also testified that if a person abused a number of steroids for four years the person’s behavior could change and events could occur which might cause that person to act more aggressively if they felt threatened or panicked. On cross-examination he also admitted that he had previously stated at the section 402 hearing that steroids did not have an impact on the ability to form intent.
Claims on appeal
Before this court Harvey argues: (1) the trial court’s limitations on Dr. Siegel’s testimony were overly restrictive and deprived him of his right to present his defense; and (2) the court erred in violation of Evidence Code section 356 in failing to allow Dr. Siegel to explain his statement “steroids do not have an impact on the ability to form intent.” We address these claims in turn.
1. The Court’s Limitations.
The trial court has discretion to admit or exclude evidence including expert testimony and in general limitations on the presentation of this evidence do not implicate the constitutional right to present a defense. (See Michigan v. Lucas (1991) 500 U.S. 145, 149; People v. Nunn (1996) 50 Cal.App.4th 1357, 1363 [“Courts have uniformly concluded that [Penal Code] sections 28 and 29 [governing the admissibility of mental state evidence] are ‘legitimate legislative determinations on the admissibility of certain classes of evidence and do not deprive a defendant of his or her right to present a defense.’”].) Furthermore, the trial court has wide latitude to limit the presentation of even relevant evidence where it is confusing or time consuming. (Evid. Code, § 352.) A court’s decision in this regard is reviewed by this court for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.)
On appeal the attorney general asserts that Harvey waived any claim that the court’s limitations on Dr. Siegel’s testimony violated his constitutional right to present a defense. However, though Harvey did not expressly object to the court’s ruling on constitutional grounds, he did argue to the court that the presentation of this evidence was “critical to his defense.” In our view this argument is sufficient to preserve the claim as to this issue.
Pursuant to Penal Code section 29, “Expert opinion on whether a defendant had the capacity to form a mental state that is an element of a charged offense or actually did form such intent is not admissible at the guilt phase of a trial.” (Pen. Code, § 29.) Penal Code sections 28 and 29 permit introduction of evidence of mental illness when relevant to whether a defendant actually formed a mental state that is an element of a charged offense, but do not permit an expert to offer an opinion on whether a defendant had the mental capacity to form a specific mental state or whether the defendant actually harbored such a mental state.” (People v. Coddington (2000) 23 Cal.4th 529, 582, [sections 28 and 29 do 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 that offense; they preclude an expert opinion that the element was not present], overruled on another point by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Penal Code section 29 states: “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.”
Penal Code section 28 states: “(a) Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged. [¶] (b) As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action or juvenile adjudication hearing. [¶] (c) This section shall not be applicable to an insanity hearing pursuant to Section 1026. [¶] (d) Nothing in this section shall limit a court’s discretion, pursuant to the Evidence Code, to exclude psychiatric or psychological evidence on whether the accused had a mental disease, mental defect, or mental disorder at the time of the alleged offense.”
In Nunn, the Fourth District Court of Appeal reviewed a trial court’s determination that the defendant’s expert psychologist could not testify concerning the defendant’s mental state at the time of the crime. Specifically the court precluded the expert from offering his opinion that the defendant had committed the crimes “implusively” based on the defendant’s status as a Vietnam war veteran who had suffered through traumatic war experiences, his abuse of alcohol, his emotionally “constricted” state, his tendency to overreact to stress, and his drunkenness at the time of the crime. (People v. Nunn, supra, 50 Cal.App.4th at pp. 1361-1362.) The Court of Appeal affirmed the trial court’s conclusion that the expert’s opinion that the defendant had acted implusively was inadmissible because it amounted to a conclusion concerning the defendant’s intent at the time of the crimes. (Id. at pp. 1363-1365.) The court in Nunn concluded: “[S]ection 29 does not simply forbid the use of certain words, it prohibits an expert from offering an opinion on the ultimate question of whether the defendant had or did not have a particular mental state at the time he acted. An expert may not evade the restrictions of section 29 by couching an opinion in words which are or would be taken as synonyms for the mental states involved. Nor may an expert evade section 29 by offering the opinion that the defendant at the time he acted had a state of mind which is the opposite of, and necessarily negates, the existence of the required mental state.” (Id. at p. 1365.)
In reaching this conclusion, the court in Nunn relied on People v. Czahara (1988) 203 Cal.App.3d 1468, where the court stated: “Penal Code section 29 prohibits expert psychiatric testimony as to whether the defendant did or did not have a required mental state, including malice aforethought. [The defendant] concedes [his expert] could not state an opinion that [the defendant] did not have the mental state required for attempted murder. But taken together, the two opinions offered from [the expert]-that [the defendant] acted in the heat of passion and that his emotional reaction was objectively reasonable under the circumstances-completely negate malice aforethought and suffice to reduce intentional murder to voluntary manslaughter.” (Id. at p. 1477, fn. omitted.) In Czahara the court further explained that the expert’s opinion that the killing was in the heat of passion with sufficient provocation was essentially a statement that the killing was done without malice aforethought—expert testimony of which would be barred under section 29. (Ibid.)
Harvey complains on appeal that Dr. Siegel should have been permitted to testify that Harvey exhibited the classic symptoms of a chronic steroids abuser and to describe the consequences of steroids abuse. He also argues the court should have allowed Dr. Siegel to evaluate the setting of Harvey’s encounter with Mrs. Schockner and offer an opinion about whether it was the type that could trigger a rage reaction in a long term steroids abuser and result in an impulsive, emotional reaction. He argues that Dr. Siegel should have been permitted to express his opinion that Harvey was experiencing or suffering from a steroids facilitated rage reaction and that the descriptions of Harvey’s emotions and the patterns of wounds on Mrs. Schockner were consistent with a rage killing.
As we shall explain, the court did not abuse its discretion in imposing limitations on Dr. Siegel’s testimony. First the court properly precluded Dr. Siegel from offering the opinion that Harvey was experiencing a “steroids facilitated rage reaction” at the time he killed Mrs. Schockner and that her death was the result of such a reaction. Like the experts in both Nunn and Czahara, Dr. Siegel couched his opinions carefully to avoid offering the opinion that Harvey lacked capacity to form specific intent. Dr. Siegel did not say that Harvey lacked intent or was unable to premeditate or harbor malice aforethought (“It’s not that a person doesn’t have the cognitive ability to premeditate, harbor malice, consider right and wrong, make decisions, weigh consequences”); and he was careful not to suggest a mental state defense. Nonetheless, in his view a person experiencing a steroid facilitated rage reaction would have their judgment and higher thinking areas “suspended,” “dominated” “bypassed” and “controlled” by the limbic system and such a person becomes “governed by raw emotions” unable to reason or stop herself or himself. This opinion amounts to a conclusion that a person who suffers a “steroids facilitated rage reaction” does not act intentionally notwithstanding his or her mental state. Dr. Siegel did not directly state that Harvey’s abuse of steroids caused him to kill Mrs. Schockner or precluded him from forming malice aforethought. But his explanation of the impact of steroids on the human brain and on Harvey, was essentially a conclusion that Harvey’s actions in killing Mrs. Schockner were not the result of his specific intent to kill her, and instead they resulted from his fear and panic which, because of his steroid abuse, overcame him and caused him to act violently and aggressively in the absence of reason. In this regard, Dr. Siegel’s opinion concerning “steroids facilitated rage reaction” is effectively no different than the expert opinions on intent the defendants offered and the courts rejected in Nunn and Czahara. When Dr. Siegel explained that the “steroids facilitated rage reaction” Harvey experienced would suspend his judgment, Dr. Siegel was expressing the view that Harvey’s intent was overborne and that he killed Mrs. Schockner out of impulse—that the killing resulted from a steroid induced rage reaction not malice aforethought. Based on Penal Code sections 28 and 29 as well as the reasoning offered in Nunn and Czahara, we conclude Dr. Siegel was not permitted to offer this opinion as a matter of law.
In addition, we agree with the trial court that Dr. Siegel’s opinion on this matter was confusing and full of seemingly inconsistent views. For example, on the one hand he testified that steroid abuse was not an “excuse” for Harvey’s conduct, but was an “explanation.” However, to accept Siegel’s explanation concerning steroid facilitated rage reaction would effectively “excuse” Harvey from responsibility for first degree murder, because even if the jury had found Harvey harbored malice aforethought, it could not have found that he acted with such specific intent in committing the murder.
In any event, even if we concluded the law did not preclude Dr. Siegel from testifying concerning the steroids facilitated rage reaction, we are not convinced sufficient evidence in the record supported the conclusion that Harvey suffered such a reaction when he committed this murder. Unlike typical situation Dr. Siegel described where a steroid abuser “snaps” and overreacts aggressively to a minor situation, nothing about the situation in this case suggested Harvey snapped over an insignificant matter. Harvey was paid to carry out serious crimes—a contract murder and to “stage” a burglary; this was a serious and significant undertaking with life and death consequences. All of the circumstances prior to and after Harvey killed Mrs. Schockner disclose advanced planning, premeditation and deliberation. It appears that Harvey carried out the hit he was paid to do. Moreover, even his description of fear and nervousness minutes before Mrs. Schockner unexpectedly confronted him on the patio do not seem out of the ordinary given the gravity of Harvey’s task. Harvey stated that he had no prior experience in a similar situation and as the seriousness of the task loomed before him he became uneasy—again a natural reaction to these events. Even his reaction to seeing Mrs. Schockner—his fear of being caught, his effort to approach her, to keep her from screaming—suggests a thought process and the operation of reasoning. Given the apparent struggle between Harvey and Mrs. Schockner and Mrs. Schockner’s effort to defend herself, the 10 wounds does not suggest that her attacker had “run amok.” Furthermore, Harvey’s recall of the details of the event (as he expressed them to police shortly after his arrest) do not imply that he was in the type of detached and disassociated state that Dr. Siegel suggested was typical in reports of “roid rage.” Thus, Dr. Siegel’s theory that Harvey was suffering from a steroid rage reaction at the time of the murder does not find significant support in the circumstances of these crimes.
Furthermore, the other opinions and testimony which Harvey complains his expert should have been allowed to offer were: (1) presented to the jury; or (2) could have been presented as they were not within the limitation imposed by the court upon Dr. Siegel’s testimony; (3) or simply did not have sufficient foundational support in Harvey’s testimony.
As to the claim Dr. Siegel should have been permitted to testify that Harvey exhibited the classic symptoms of a chronic steroids abuser and to describe the consequences of steroids abuse, we note that Dr. Siegel testified regarding the physical and emotional side effects of anabolic steroids use and abuse, particularly the multiple combination of steroids Harvey had abused during the four years prior to the crimes. He told the jury that steroids cause addiction, mood swings, depression, confusion, impulsivity, paranoia, aggressiveness and violent behavior. He discussed “roid rage” that sometimes results causing a person to snap and overreact violently and aggressively to small things. He testified that during a rage reaction, the person may not be able to recall what had occurred. As to testifying with respect to whether Harvey exhibited the classic symptoms of a chronic steroids abuser, Dr. Siegel described the types of steroids Harvey had taken and indicated a view that they were addictive and could be abused. It is true Dr. Siegel did not testify to the jury that he had “diagnosed” Harvey as suffering from a mental disease or addiction condition, nor did he expressly characterize Harvey as a steroids abuser. The court’s order did not permit Dr. Siegel to testify that Harvey suffered from a steroid facilitated rage reaction at the time he killed Mrs. Schockner and the court would not allow the doctor to go into specifics as to Harvey concerning the day of the murder. Nonetheless the court’s order did not prevent Siegel from offering his opinion or a specific diagnosis as to Harvey’s history of steroid abuse prior to the killing. While the trial court stated that “it would be appropriate to permit [Dr. Siegel] to testify . . . how steroids affect people generally,” in making that observation the court did not limit Dr. Siegel only to providing generic testimony concerning steroids.
Concerning the complaint that Siegel was precluded from evaluating a hypothetical encompassing the setting of Harvey’s encounter with Mrs. Schockner and offering an opinion about whether it was the interaction that could trigger a rage reaction in a long term steroids abuser and result in an impulsive, emotional reaction, the record discloses that Siegel was allowed to testify to a general hypothetical incorporating some elements. Specifically he testified that a four-year steroid abuser who experiences a sudden event will overreact or act more aggressively when he feels threatened or panics.
Finally we reject Harvey’s complaint that Dr. Siegel was not permitted to describe Harvey’s emotions or that the patterns of wounds on Mrs. Schockner were consistent with a rage killing. Even if Harvey had specifically sought to offer these opinions through Dr. Siegel in the trial court, which he did not, the court would have properly rejected them. Harvey described his emotions prior to and during the crimes and anything Dr. Siegel might have offered on the subject would have been cumulative. As for the patterns of wounds, Harvey did not lay a proper foundation to offer such an opinion. Dr. Siegel stated, in passing, that based on “his experience and opinion” three potentially fatal stab wounds to Mrs. Schockner amounted to “overkill.” Dr. Siegel, however, did not disclose the nature of his experience concerning such matters and consequently, there was nothing to suggest that he had sufficient expertise to offer the opinion.
In view of the foregoing, we conclude the court acted properly placing certain limits on the scope of Dr. Siegel’s testimony.
2. Harvey’s Evidence Code Section 356 Argument.
During her cross-examination of Dr. Siegel during his trial testimony, the prosecutor questioned him about his prior testimony at the Evidence Code section 402 hearing. Specifically, the prosecutor asked, “And you also said steroids do not have an impact on the ability to form intent correct?” During the subsequent discussions outside the jury’s presence, the prosecutor complained that Dr. Siegel’s response was misleading.
Harvey’s counsel did not argue that Dr. Siegel should be permitted to explain his comment or object under Evidence Code section 356 at that point. Instead, Harvey’s counsel argued that at an earlier point in the cross-examination when the prosecutor said to Dr. Siegel “you testified earlier that steroid is not an excuse, it’s an explanation” the prosecutor had “opened the door” to the previously precluded expert testimony concerning Harvey’s intent to commit the murder. The trial court disagreed, commenting that the prosecutor’s earlier question was non-specific. The court directed the attorneys to “just let this intent business go.” The prosecutor continued to complain that Dr. Siegel’s comment that her question was “out of context” was misleading and was unfair. Harvey’s counsel suggested that the court admonish the jury about the comment. When trial resumed in front of the jury, the trial court informed the jurors, “Ladies and gentlemen, in response to one of my questions at an earlier proceeding, the doctor answered to my questions -- answered my question the effect that it does not affect intent and we're going to leave it at that.”
Later on redirect, Harvey’s counsel asked Dr. Siegel, “When the District Attorney was questioning you, she asked you the following question whether or not you said this yesterday: ‘Steroid is not an excuse, it’s an explanation.’” The prosecutor objected, and the trial court sustained the objection. During the subsequent discussions outside the jury’s presence defense counsel argued the prosecutor “opened the door” by asking questions about Dr. Siegel’s testimony outside the jury’s presence and that the questions asked by defense counsel were designed to give meaning to Dr. Siegel’s responses on his cross-examination. The trial court sustained the prosecutor’s objection, stating, “We're not getting into that.”
On appeal Harvey also complains the trial court erred in violation of Evidence Code section 356 in failing to allow Dr. Siegel to fully explain his statement “steroids do not have an impact on the ability to form intent” to the jury. This claim lacks merit.
Evidence Code section 356 provides, in pertinent part: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party . . . .” (Evid. Code, § 356.) “In applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. ‘In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence. . . .’ [Citations.]” (People v. Hamilton (1989) 48 Cal.3d 1142, 1174.)
While Dr. Siegel certainly complained that the prosecutor had taken his statement concerning intent out of context, Harvey’s counsel did not object to the question on that basis nor did he invoke section 356. Harvey’s counsel’s greater concern was the question asked earlier in the cross-examination (i.e., “Steroid is not an excuse, it’s an explanation.”) and whether that prior remark had “opened the door” to specific evidence concerning Harvey’s intent when he committed the murder. In view of these facts, we conclude Harvey has not preserved the complaint he posits on appeal concerning Evidence Code section 356. (People v. Von Villas (1992) 10 Cal.App.4th 201, 267-268 [failure to raise evidentiary argument below constitutes a waiver of the matter on appeal]; Evid. Code, § 354.)
In any event, any error in this regard was harmless because the explanation and context for the comment concerning the impact of steroids on the formation of intent was presented to the jury. Dr. Siegel told the jury that steroids made a person detached and dissociated and that the drugs operated upon the limbic system to suspend the reasoning (cortical) centers of the human brain from the emotional areas of the brain. He said that anger, rage and fear are controlled by the limbic system and that anabolic steroids can trigger a person’s limbic system to kick-in and block off and suspend a person’s ability to think clearly. Accordingly we reject Harvey’s complaint with respect to this claim.
II. Jury Instruction Claims
On appeal Harvey asserts two claims with regard to the court’s failure to give jury instructions concerning his mental condition at the time of the murder. First he asserts the court erred in rejecting his request for CALJIC No. 3.32 concerning evidence of a mental disease and he further claims his counsel was ineffective for failing to request CALJIC Nos. 4.21 and 4.22 on voluntary intoxication. As set forth below, we conclude substantial evidence presented to the jury did not support these instructions.
A. CALJIC No. 3.32.
Below Harvey requested the court instruct the jury with CALJIC No. 3.32 concerning the relationship between mental disease, defects and disorders and the specific intent to commit first degree murder. The court rejected the request concluding that there was no evidence presented that Harvey suffered from such a disease, disorder or defect, observing that while Harvey had presented evidence that steroids affected people in certain ways, there was no indication that it rose to the level of mental disease.
CALJIC No. 3.32, states in relevant part:
“You have received evidence regarding a mental disease, mental defect or mental disorder of the defendant at the time of the commission of the crime charged. You should consider this evidence solely for the purpose of determining whether the defendant actually formed the required specific intent, premeditated, deliberated or harbored malice aforethought which is an element of the crime charged.”
CALJIC No. 3.32 is in the nature of a pinpoint instruction that is required to be given only on request where the evidence supports the defense theory. (People v. Ervin (2000) 22 Cal.4th 48, 91.) A trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense. (In re Christian S. (1994) 7 Cal.4th 768, 783.)
On appeal Harvey argues that the court should have given this instruction because steroids are controlled substances and the abuse of these drugs qualifies as an illness or psychological condition causing symptoms of various personality disorders. He also points out based on the evidence presented he was addicted to steroids and experienced the psychological effects of steroids. The problem with his argument on appeal is two-fold.
First though on appeal Harvey refers to psychological texts, including the Diagnostic and Statistical Manual of Mental Disorders, as evidence to bolster his argument that steroid abuse is a bona fide mental illness/condition, this evidence was not presented to the trial court during the 402 hearing or to the jury during the trial. Dr. Siegel discussed the various physical and psychological effects of steroids on humans, but he did not testify that steroid abuse was a recognized psychological or mental disease or defect in the medical community or in the literature.
Second, there was no evidence presented to the jury by Dr. Siegel or any other witness to establish that Harvey had actually been diagnosed as a steroids abuser or suffering from a specific mental illness, condition or disorder. “Mental illness [or mental defect] is a medical diagnosis. (People v. Kelly (1992) 1 Cal.4th 495, 540.) Expert medical testimony is necessary to establish a defendant suffered from a mental disease, mental defect, or mental disorder because jurors cannot make such a determination from common experience. (See Conservatorship of Torres (1986) 180 Cal.App.3d 1159, 1163.)
In general the cases endorsing giving CALJIC No. 3.32 to the jury have all done so where expert medical testimony was adduced on the question of defendant’s mental disease and a diagnosis was presented. (See People v. Smithey (1999) 20 Cal.4th 936, 955-956 [three defense experts examined and tested the defendant and concluded the defendant had organic brain damage, a generally diffused brain dysfunction, and mild mental retardation and other evidence presented at trial included a toxicology analysis of the defendant’s blood, indicating the defendant was suffering from classic amphetamine-psychosis syndrome]; People v. Musselwhite (1998) 17 Cal.4th 1216, 1229-1230, 1247-1249 [expert testimony defendant suffered from mental disease; trial court properly gave an instruction consistent with CALJIC No. 3.32]; People v. Aguilar (1990) 218 Cal.App.3d 1556, 1569 (Aguilar), disapproved on other grounds in People v. Ervin, supra, 22 Cal.4th at pp. 90-91, [the trial court erred in not instructing with former CALJIC No. 3.36 (current CALJIC No. 3.32), when defense psychology experts examined the defendant and reached specific conclusions regarding his mental state; specifically, the defendant suffered from paranoid personality traits which could have been caused or exacerbated by his cocaine use, and which would have impaired his judgment or caused him to overreact if he felt threatened]; People v. Cox (1990) 221 Cal.App.3d 980, 987; People v. Molina (1988) 202 Cal.App.3d 1168, 1171 [same]; People v. Young (1987) 189 Cal.App.3d 891, 907-909 and fn. 6 [same].)
Dr. Siegel testified at the section 402 hearing that Harvey’s use of multiple steroids had manifested itself in the various psychological and physical conditions and symptoms typical of persons who abuse steroids, including aggression, anger, depression and mood swings. Dr. Siegel did not, however, offer those specific opinions concerning Harvey to the jury. Moreover, as our discussion elsewhere indicates, nothing in the limitations the court placed on Dr. Siegel’s testimony would have prevented him from offering a diagnosis or an opinion that Harvey had abused and was addicted to steroids.
Given the foregoing, we conclude that substantial evidence did not warrant the giving of CALJIC No. 3.32 and the trial court did not err in refusing to give the instruction.
B. CALJIC Nos. 4.21 & 4.22.
Before this court Harvey asserts the court should have instructed the jury with CALJIC Nos. 4.21 and 4.22 concerning the effects of voluntary intoxication on the issue of specific intent and his counsel provided ineffective assistance in failing to request these instructions below. We disagree.
To establish a claim of ineffective assistance of counsel, the defendant must prove both counsel’s representation was objectively deficient, below a reasonable standard of care under prevailing professional norms, and prejudice flowing from the deficient performance, that is, but for counsel’s errors, the defendant would have received a more favorable result. (People v. Waidla (2000) 22 Cal.4th 690, 718.) Defendant has the burden of proving an ineffective assistance. (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
Given the difficulties inherent in making this evaluation, this court indulges in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered a sound trial strategy.” (People v. Thomas (1992) 2 Cal.4th 489, 530-531.) “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” (Strickland v. Washington (1984) 466 U.S. 668, 690-691.) In addition if the record sheds no light on why counsel acted or failed to act in the challenged manner, the court will reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel’s performance. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Moreover, a reviewing court need not determine “whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (In re Fields (1990) 51 Cal.3d 1063, 1079.) Defendant must affirmatively demonstrate prejudice. It is not sufficient for the defendant to show the error had some “conceivable effect” on the outcome of the proceeding; defendant must prove that there is a “reasonable probability,” that absent the errors the result would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) As we shall explain, we conclude counsel was not ineffective because the evidence presented would not have warranted the request for the voluntary intoxication instructions.
As with the form jury instruction concerning mental diseases, defects and disorders, CALJIC Nos. 4.21 and 4.22 are pinpoint instructions which relate particular facts to a legal issue in the case or “pinpoint” the crux of a defendant’s case and are required to be given upon request when there is evidence supportive of the theory. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) More specifically, voluntary intoxication instructions are warranted only “when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s ‘actual formation of specific intent.’” (People v. Williams (1997) 16 Cal.4th 635, 677.) In other words “an intoxication instruction is not required when the evidence shows that a defendant ingested drugs or was drinking, unless the evidence also shows he became intoxicated to the point he failed to form the requisite intent or attain the requisite mental state.” (People v. Ivans (1992) 2 Cal.App.4th 1654, 1661-1663, emphasis deleted; People v. Ramirez (1990) 50 Cal.4th 1158, 1180-1183.)
CALJIC No. 4.21 states, “In the crime of ______________________ of which the defendant is accused [in Count [s] ______________________ of the information], a necessary element is the existence in the mind of the defendant of the [specific intent to] ______________________ [mental state[s] of ______________________].
In Ivans, the defendant testified at the time of the shooting he had been high on speed for a month and had been awake for three or four days. However, witnesses reported that the defendant appeared calm and did not exhibit any symptoms of a person high on speed. In addition, defendant also gave detailed testimony about the events that morning of the crime, including obtaining a weapon from a friend, going to the truck, and getting into an argument with another person. The court found the evidence was insufficient to show the defendant’s drug use had affected his mental state, and therefore concluded no instruction on voluntary intoxication was required. (Id., at p. 1662.)
In Ramirez, the defendant testified he had drunk eight to ten beers the night of his crime, and “‘was higher’” than he was when arrested a few days later with a blood-alcohol level of .14 percent. (Ramirez, supra, 50 Cal.3d at p. 1180.) However, neither the defendant nor any other witness testified that the drinking had noticeably affected the defendant’s mental state or actions. The defendant gave a detailed account of the events that night, and never suggested that his memory or conduct had been impaired. (Id., at p. 1181.)
The record in this case is not particularly clear, but it appears, according to the testimony of Dr. Siegel at the Evidence Code 402 hearing that Harvey was at the time of the crimes “cycling off” of several steroids. He apparently told the doctor he had not taken some of them for two weeks prior to the murder while others he had taken within a few days before the incident. Dr. Siegel further explained that even those that he had not taken would still be in Harvey’s system because the half-life of the steroids was over 30 days. In fact, he stated that Harvey might have been experiencing withdrawal systems from a few of the drugs. Dr. Siegel noted that during the withdrawal period the psychological effects—depression, anxiety and aggression—would still be present, and perhaps intensified. This evidence notwithstanding, we are not persuaded based on the record that Harvey was so “intoxicated” by the steroids at the time of the crimes that he could not or did not harbor malice aforethought. Indeed as noted elsewhere in this opinion, the evidence shows Harvey’s planning and deliberation leading up to the crimes and his calmness afterwards. Moreover, Harvey was able to recall the details of the situation for the police after being apprehended; he did not “black out” or claim to have “disassociated.” In addition, the thoughts and emotions he expressed minutes before and during the attack on Mrs. Schockner—notably his fear of being caught, his nervousness and frustration, his desire to keep Mrs. Schockner from screaming, and the nature of the attack and the number of blows and the fact that after killing her he had the presence of mind to finish staging the burglary—do not amount to sufficient evidence of a level of intoxication which affected his mental state in a manner that might negate the requisite mental state for first degree murder. As a result, the instructions were unwarranted and Harvey’s counsel was not ineffective for failing to request them.
III. Harvey’s November 10 Statements to the Police
On appeal Harvey contends his trial counsel was ineffective for failing to seek to suppress the statement he made to police during his November 10, 2004, interview. Specifically, he claims the statements he made concerning the plan to murder Mrs. Schockner for financial gain were involuntary and also he contends that other statements he made during the interview concerning his view that he had been “set-up” and his belief that, if convicted of second degree murder he would eventually get out of jail and seek revenge on Jaramillo and Mr. Schockner were irrelevant and unduly inflammatory. As we shall explain, his counsel was not ineffective for failing to seek the exclusion of any of these statements because his statements were neither involuntary, nor irrelevant or overly prejudicial.
A. Voluntariness of Harvey’s Statements Concerning the Murder for Hire Plot.
During Harvey’s first two interviews with police on November 8 and November 9, Harvey told the police that he accidentally killed Mrs. Schockner during the burglary of her home. He did not implicate anyone else in the crimes. After the police researched Harvey’s cell phone records and discovered a pattern of calls in the weeks and days leading up to the murder as well as the day of the crimes, detectives interviewed Harvey again on November 10. They presented Harvey with the cell phone records and asked him about various telephone numbers appearing there. They specifically asked him to identify who he had been calling and who had called him. Harvey initially equivocated and the detective stated: “you need to be completely honest with us because we come up with cell phone records from [Mr. Schockner]” When Harvey asked: “Calling me?” The detective replied: “Now listen to me close. The same numbers been calling that you talked to. Okay. Now remember yesterday I talked to you and told you, Nick, you need to quit hiding whatever your hiding. I truly believe you in a lot of aspects but you’re hiding something. You need to tell us because we’re gonna be walkin’ over there today. Okay? And we’ll be talking with the District Attorney. If there’s someone else involved, someone who called you, talked to you and says this is the house, this is what I want you to do. You need to be fully truthful with my partner and I right now because it’s only gonna you know, benefit you to tell the truth. Because this is getting uglier and uglier. Him [the other detective present] and I been doing this a long time Nick, you need to take care of Nick and your responsibility now. Take care of Nick now please. . . . And tell -- be truthful with us. ‘Cause we’re not gonna stop, Nick. Him and I, that’s our job.” Harvey then stated that he had been hired to “hit the house.” The detective stated: “This is – and you’re being honest with us, which is great right now. Okay. When you cooperate [sic] us it kind of benefits you. You’re telling the truth, okay. . . . Harvey then described further details concerning the plan and his connection with Jaramillo. He related that he had been hired to kill Mrs. Schockner and was paid to commit the murder and to stage a burglary to cover up the plot. At the conclusion of the interview, Harvey agreed that he had made his statement without any promise, leniency or reward.
Before this court Harvey claims that his statements to detectives during the November 10 interview concerning the murder-for-hire plot were not “voluntarily” offered, but instead were given based on the detectives implied promise of leniency and thus should have been suppressed during the trial. We are unconvinced.
For a confession made to the police to be admissible as evidence, the confession must have been made voluntarily and without coercion. (Jackson v. Denno (1964) 378 U.S. 368, 385-386; People v. Neal (2003) 31 Cal.4th 63, 79.) The admission of an involuntary confession as evidence against a defendant violates a defendant’s due process rights. (Jackson v. Denno, supra, 378 U.S. 368.) A confession is involuntary if an individual’s will was overborne. (Rogers v. Richmond (1961) 365 U.S. 534, 544; People v. Sanchez (1969) 70 Cal.2d 562, 572.) A coerced confession is not “the product of a rational intellect and a free will.” (Blackburn v. Alabama (1960) 361 U.S. 199, 208.)
Whether a confession is voluntary depends on the totality of the circumstances involved. (People v. Neal, supra, 31 Cal.4th at p.79.) In so doing the court examines: (1) the details of the interrogation, namely the nature of police conduct and whether the conduct was a motivating cause of the of the defendant’s admission; and (2) the characteristics of the accused. (People v. Jones (1998) 17 Cal.4th 279, 296-297; In re Shawn D. (1993) 20 Cal.App.4th 200, 208-209.)
Turning first to the police conduct, it is well established that a confession elicited by promises of benefit or leniency is involuntary. (People v. Jimenez (1978) 21 Cal.3d 595, 611-612, overruled on another point in People v. Cahill (1993) 5 Cal.4th 478; People v. Hill (1967) 66 Cal.2d 536, 549.) As the California Supreme Court observed in People v. Sultana (1988) 204 Cal.App.3d 511, 522, “‘It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.’” (Id. at p. 522, [italics added], citing People v. Jimenez, supra, 21 Cal.3d at p. 611.) “The distinction that is to be drawn between permissible police conduct on the one hand and conduct deemed to have induced an involuntary statement on the other ‘does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speaks the truth as represented by the police.’” (Id. at p. 611, citing People v. Hill, supra, 66 Cal.2d at p. 549.) Thus, “[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct,” the subsequent statement will not be considered involuntarily made. (People v. Jimenez, supra, 21 Cal.3d at p. 612.) On the other hand, “if . . . the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. . . .” (Ibid.)
“Once a suspect has been properly advised of his rights, he may be questioned freely so long as the questioner does not threaten harm or falsely promise benefits. Questioning may include exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect. . . . Yet in carrying out their interrogations the police must avoid threats of punishment for the suspect’s failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession.” (People v. Flores (1983) 144 Cal.App.3d 459, 470.)
Here Harvey does not claim the detectives made any express promises of leniency in exchange for his statement. (Compare: People v. Jimenez, supra, 21 Cal.3d at p. 611 [The defendant testified he made his statements to the officers because they told him that if he talked about the case, they would tell the jury and the jury would go lighter on him]; In re J. Clyde K. (1987) 192 Cal.App.3d 710, 716 [when three juveniles were stopped by police, the officers said that if the juveniles told the truth, they would get a citation but that if they lied, they would go to jail], overruled on another point in People v. Badgett (1995) 10 Cal.4th 330, 350; People v. Trout (1960) 54 Cal.2d 576 [the California Supreme Court invalidated a confession obtained after the police told the defendant that if he confessed his wife would be released to care for their children], overruled on another point in People v. Cahill (1993) 5 Cal.4th 478.) In fact, at the end of the interview, Harvey agreed that police had not made any such promises.
Nonetheless the question remains as to whether the detective’s statements to Harvey amount to an implied promise of leniency. The detective’s statements to Harvey that they believed he was hiding something, that he needed to tell the truth, that the situation was getting “uglier and uglier” and that he would “benefit” from telling the truth do not imply any particular promise of leniency to Harvey in exchange for his statement. Likewise the statement by police “When you cooperate [sic] us it kind of benefits you,” is non-specific. One could reasonably infer from these statements that the “benefit” is merely that which flows naturally from a truthful and honest course of conduct. When viewed in the context of the entire interview the statements reasonably suggest that the police already knew or strongly suspected the murder plot and that Harvey needed to take responsibility for his actions; that Harvey needed to identify the others involved before the officers spoke with the district attorney so that the others involved could be brought to justice and Harvey would not be left taking sole responsibility for the crimes. Viewed thusly, the statements do not impermissibly imply any leniency for telling the truth. (See People v. Hill (1967) 66 Cal.2d 536, 539 [the exhortation to tell the truth or the comment that the accused would be “helping himself by cooperating” not sufficient to establish improper inducement].)
Of course the line “can be a fine one” between urging a suspect to tell the truth by factually outlining the benefits that may flow from confessing, which is permissible, and impliedly promising lenient treatment in exchange for a confession, which is not. (People v. Holloway (2005) 33 Cal.4th 96, 117, quoting People v. Thompson (1990) 50 Cal.3d 134, 169.) But even if the officer’s references to “benefit” and the fact they would be speaking with the district attorney somehow implied a promise of leniency, we would nonetheless conclude that the statement to police was voluntary because any promise of leniency was not the “motivating” factor in Harvey giving the statement nor do the other circumstances of the interview, including Harvey’s personal characteristics suggest that his will was overborne and his statement was not the product of a rational intellect and free will.
An implied promise of leniency must be “the motivating cause of any confession.” (People v. Jones (1998) 17 Cal.4th 279, 297; People v. Vasila (1995) 38 Cal.App.4th 865, 874, 876-877.) In our view the motivation cause of Harvey’s revelations was not the officers’ exhortation to tell the truth, or the statements concerning the benefits of cooperation and truth-telling or even the reference to the District Attorney. Instead after two prior interviews where Harvey failed to reveal the plot, his statements admitting the murder for hire plan came as a result of the presentation of the cell phone records and in particular the statements that police had records showing Harvey and Mr. Schockner had been calling the same person (i.e., Jaramillo the go-between). In fact at a later point in the interview Harvey disclosed motivation for revealing the truth. In response to the detective’s statement: “I personally don’t think it is fair for you to sit here where you’re at and you got two guys [Mr. Schockner and Jaramillo] out there pretty much sitting on a high horse--” To which Harvey responded: “They’re actually one of the reasons – one of the reasons why I am telling you this ‘cause I’ve been thinking about it. And I knew when I was telling you guys what I had actually done I wasn’t – ‘cause I knew the truth was gonna come out it’s – it’s – there’s too many connections. Especially with the goddam cell phones. . . . Whatever . . .when I was telling you . . . get in on murder 2 and get out and take care of Frank [Jaramillo] myself or go there or let you guys take care of him. I was kind of just biding my time . . . actually. . . I knew when you guys were asking me about it you already knew what was going on. [¶] Well, I’m gonna answering questions you have at this point because I know I'm getting screwed.” In view of these comments it becomes clear that the reason Harvey revealed the plot at that point was that he knew the police had the cell phone evidence which linked him to the others and there was no point in denying it any longer. Consequently, in our view an implied promise, if any existed, could not be said to have been the motivating factor of Harvey’s admissions.
Furthermore, neither Harvey’s personal characteristics nor any other aspect of the interview suggests that his statement was involuntary. Characteristics of the accused which may be examined include the accused’s age, sophistication, prior experience with the criminal justice system and emotional state. (In re Shawn D., supra, 20 Cal.App.4th at pp. 208-209.) Harvey was 22 years old at the time of the interview and he was a body builder and worked as a bouncer. Detectives described his emotional state during the interview as calm; he was not under the influence of drugs or alcohol at the time, nor did he express any discomfort or fatigue in the setting. The record discloses no information concerning the level of his education or level of sophistication, but his responses throughout the interview do not suggest that he had any difficult comprehending the detectives or appreciating the significance of the situation. Though he did not appear to have prior experience with the criminal justice system, he did not appear to be particularly naïve. Moreover, it appears from the transcript that the officers conducted the interview, which was not particularly lengthy, in a civil and professional manner. There are no other indicia of police coercion during the interview.
In view of the foregoing and in view of the totality of the circumstances of the November 10 interview we conclude that Harvey’s admissions to police concerning the murder for hire and burglary plot were not the product of an implied promise of leniency and were not otherwise involuntary. As a result Harvey’s counsel was not ineffective in failing to suppress Harvey’s statements.
B. Statements Pertaining to Second degree murder, Harvey’s desire to seek revenge and to Harvey’s view that he had been set-up.
Harvey also claims his counsel was incompetent in failing to move for the exclusion of statements he made to police during the November 10 interview in which Harvey stated that he thought (because the police had appeared so quickly) after the crime that he had been “set-up” and that he thought that if he was convicted of second degree murder he would one day get out of prison and seek revenge on Jaramillo. Harvey contends that these statements are irrelevant and/or were subject to challenge under Evidence Code section 352. He complains the statements allowed the jury to view him as an evil and vicious person who had no regard for the law and was likely to convict him on that basis. This claim lacks merit.
In our view these statements were probative on the issue of his credibility. During his cross-examination, the prosecutor sought to demonstrate that Harvey’s trial testimony was unbelievable, that is was contrived to make it appear that he lacked the requisite intent to kill Mrs. Schockner. The prosecutor asked him about the inconsistencies between his statements to police (in November 2004) shortly after the murder in which he was able to recall the details of the murder and his trial testimony in which he claimed he could not remember the details of the stabbing. The prosecutor stated Harvey had a history of lying when it was convenient for him. As further evidence of this claim the prosecutor then reminded Harvey that in early interviews with police he had lied to them about why he was at the Schockner home and that he did that because he had hoped that by not revealing all of the details he would only be convicted of second degree murder, eventually get out of prison and get revenge on Jaramillo who Harvey believed had set him up. Thus, Harvey’s statements concerning a “set-up,” “revenge” and “second degree” murder were relevant.
We also reject Harvey’s claim that the statements should have been excluded under Evidence Code section 352. The statements are prejudicial but are not unduly inflammatory in themselves or when considered in context of the other evidence of this crime. If the jury came to view Harvey as an evil and vicious person who had no regard for the law it had ample other evidence from which they would have drawn this conclusion. Thus, any prejudice flowing from these comments does not outweigh the probative value of this evidence.
In sum, Harvey’s counsel was not ineffective for failing to object to the admission of this evidence.
IV. Cumulative Error.
Finally Harvey asserts he is entitled to a reversal of the judgment based on the cumulative effect of the errors below. However, we have examined each of defendant’s claims on appeal and have found them to be without merit. Having found no error, there is no basis for reversal based on cumulative error. (People v. Raley (1992) 2 Cal.4th 870, 921.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J., ZELON, J.
If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether defendant had such [specific intent] [mental state].
“If from all the evidence you have a reasonable doubt whether the defendant formed such [specific intent] [mental state[s]], you must find that [he] [she] did not have such [specific intent] [mental state[s]].”
CALJIC No. 4.22 provides: “Intoxication is voluntary if it results from the willing use of any intoxicating liquor, drug or other substance, knowing that it is capable of an intoxicating effect or when [he][she] willingly assumes the risk of that effect.
“Voluntary intoxication includes the voluntary ingestion, injecting or taking by any other means of any intoxicating liquor, drug or other substance.”