Opinion
F061101
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. RUSSELL DONALD HAYNE, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Max Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. BF130238A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Max Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Russell Donald Hayne of first degree murder with use of a deadly weapon enhancement. He contends the trial court erred prejudicially in instructing the jury by failing sua sponte to (1) instruct the jury with CALCRIM No. 627 (hallucination: effect on premeditation) and (2) instruct the jury that the standard for provocation negating deliberation and premeditation is subjective. Hayne also claims CALCRIM No. 570 confused the jury. We reject his contentions and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On the morning of December 2, 2009, Hayne called 911 and told the operator, "I just killed my roommate." When asked why, Hayne responded, "Cause I've had enough." When asked what the victim had been doing that prompted Hayne's action, Hayne responded, "Just what she's been doing to me. My whole fuckin' life." Hayne then told the operator he would be waiting on the porch and would not resist arrest.
Shortly after the 911 call, officers arrived at Hayne's residence and placed him in custody. Officers found Darlene Michelle McDaniel dead inside the residence lying in a pool of blood. There were lacerations on her neck extending from her right to her left ear. In the kitchen, there was a knife block with a set of knives. There was some blood on the handles. Two knives had been removed and were covered in blood; they were elsewhere in the kitchen.
An autopsy revealed that the cause of McDaniel's death was sharp force trauma to the neck from multiple cuts extending from ear to ear and back to the cervical spine. McDaniel also had nine puncture wounds to her abdomen.
After his arrest, Hayne was questioned by Detective Lonnie Mills in a recorded interview. Hayne stated he had known McDaniel for 23 years. Although they had an intimate relationship in the 1980's, in 2009 they were simply roommates. McDaniel had moved in with Hayne in late summer of 2009.
About a month before the murder, after being sober for 24 years, Hayne began drinking and taking Vicodin and Percocet. A week before the murder, Hayne had spent several days in the hospital, where he was attempting to withdraw from alcohol and the painkillers. He was prescribed Librium to help in dealing with the withdrawal symptoms. A few days before the murder, Hayne stopped using the Librium patch because he believed it was making him feel disoriented and causing difficulty sleeping. Hayne denied using any alcohol, painkillers, or illegal drugs after his release from the hospital.
The morning of December 2, 2009, Hayne was agitated toward McDaniel. Hayne had not slept much in the past few days, and he felt McDaniel was taking advantage of him financially. He stated he was "in distress over this ... money situation. It was ... eatin' at me."
Hayne began to think of ways he could kill McDaniel. He went outside and smoked a cigarette to calm down. When he went back inside the residence, his agitation toward McDaniel returned. Hayne "pushed her" and then "tried choking her first." Hayne acknowledged he was "out of control." Hayne choked McDaniel until she was unconscious.
Although unconscious, McDaniel was still breathing. Hayne took a knife from the kitchen. Hayne stated, "I just wanted to finish it." He tried stabbing McDaniel in the abdomen, but the knife bent. Hayne then used a knife to saw McDaniel's throat. After cutting her throat, Hayne called 911.
Dr. Thomas P. Middleton, a licensed psychologist, testified for Hayne. Middleton opined that Hayne suffered from "polysubstance-induced mood disorder." He also testified that Hayne suffered from "depressive disorder" as a result of "incarceration and death of a loved one," the loved one being McDaniel and the incarceration being the result of the murder charge. Middleton believed that Hayne's mood disorder was the result of Hayne's alcohol and opiate dependence and overmedicating by the hospital.
Althea McDaniel, the daughter of the victim, testified that Hayne was "[n]ot himself" when he returned home from the hospital. She thought Hayne was hallucinating because he "licked his hand and was wiping black dots off the wall, but there was nothing there." Several people testified that Hayne was a nonviolent person and that McDaniel was an unpleasant person to be around.
The jury convicted Hayne of first degree murder and found the deadly weapon enhancement true. The trial court imposed an aggregate term of 26 years to life.
DISCUSSION
I. CALCRIM No. 627
Hayne contends the trial court had a sua sponte duty to instruct the jury with CALCRIM No. 627, which states: "A hallucination is a perception not based on objective reality. In other words, a person has a hallucination when that person believes that he or she is seeing or hearing [or otherwise perceiving] something that is not actually present or happening. [¶] You may consider evidence of hallucinations, if any, in deciding whether the defendant acted with deliberation and premeditation. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with deliberation and premeditation. If the People have not met this burden, you must find the defendant not guilty of first degree murder."
The parties and the trial court discussed jury instructions and mental impairment generally. No one requested that the jury be instructed with CALCRIM No. 627 and there was no mention of Hayne suffering hallucinations during the discussion on jury instructions. CALCRIM No. 3428, addressing mental impairment and its impact on the ability to form a specific intent or mental state, was given to the jury.
We reject Hayne's contention because CALCRIM No. 627 is a pinpoint instruction that the trial court has no sua sponte duty to give. Alternatively, any failure to give the instruction was not prejudicial to Hayne.
Pinpoint instruction
The trial court has a sua sponte duty to give defense instructions supported by substantial evidence and consistent with the defendant's theory of the case. (People v. Barton (1995) 12 Cal.4th 186, 195; People v. Baker (1999) 74 Cal.App.4th 243, 252.) Instructions that relate "particular facts to the elements of the offense charged" are pinpoint instructions that a trial court has no sua sponte duty to issue to a jury. (Barton, at p. 197.)
Hayne is correct in that "[E]vidence of a hallucination—a perception with no objective reality—is inadmissible to negate malice so as to mitigate murder to voluntary manslaughter but is admissible to negate deliberation and premeditation so as to reduce first degree murder to second degree murder." (People v. Padilla (2002) 103 Cal.App.4th 675, 677.) Hayne is incorrect in his assertion that the trial court therefore had a sua sponte duty to instruct with CALCRIM No. 627. The California Supreme Court has held that the effect of a defendant's mental disease or disorder on his or her mental state amounts to a pinpoint instruction, which a trial court has no sua sponte duty to provide. (People v. Ervin (2000) 22 Cal.4th 48, 91 (Ervin); People v. Saille (1991) 54 Cal.3d 1103, 1120.)
The Ervin case is particularly instructive. In Ervin, the defendant was convicted of first degree murder. (Ervin, supra, 22 Cal.4th at p. 66.) The defendant asserted the trial court erred by failing sua sponte to instruct the jury regarding the effect of a mental disease, defect, or disorder on his ability to premeditate and deliberate. (Id. at p. 89.) The California Supreme Court held that instructions regarding the actual effect of the defendant's mental disease or disorder on his mental state and the ability to premeditate and deliberate were instructions "in the nature of pinpoint instructions required to be given only on request." (Id. at pp. 90-91.)
In Hayne's case, there was no request that CALCRIM No. 627 be given to the jury. Hayne's contention essentially is the same as that of the defendant in Ervin. Absent a request, the trial court had no duty to instruct the jury with CALCRIM No. 627.
No prejudice
Regardless, any failure to instruct with CALCRIM No. 627 was not prejudicial to Hayne. The jury was instructed with CALCRIM No. 3428 regarding the effect of any mental disease, defect, or disorder on Hayne's ability to form the requisite mental state. Consequently, the issue raised by CALCRIM No. 627 was necessarily before the jury and decided against Hayne, making any error harmless. (People v. Chatman (2006) 38 Cal.4th 344, 392.)
Furthermore, there was no evidence that Hayne was suffering from any hallucination at the time he killed McDaniel. Hayne's call to 911 and his comments during his subsequent interview by authorities did not disclose any evidence that Hayne was suffering from a hallucination or that any hallucination played a role in the murder. Hayne's stated reason for killing McDaniel was that he had "had enough," was "in distress" over his "money situation," and that McDaniel had him "paying for everything." No hallucination factored into the murder and an instruction on hallucinations would not have been warranted by the evidence.
II. Provocation Instructions
At trial, Hayne argued he was provoked by McDaniel and the killing therefore was voluntary manslaughter, not murder. The jury was given CALCRIM Nos. 522 and 570, which instructed the jury to consider provocation in determining whether the killing was first or second degree murder or voluntary manslaughter.
Hayne now contends the trial court erred by failing sua sponte to instruct the jury that the standard for provocation negating deliberation and premeditation is subjective. Hayne also contends that instructing the jury with CALCRIM No. 570, setting forth the objective standard for provocation reducing murder to manslaughter, created confusion for the jury. We disagree.
CALCRIM No. 522 instructs that provocation may reduce a murder from first degree to second degree and that "The weight and significance of the provocation, if any, are for [the jury] to decide." This instruction has been held to be an accurate and adequate statement of the law. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1333-1335.) CALCRIM No. 522 is a pinpoint instruction and the trial court has no sua sponte duty to issue this instruction to a jury; the instruction need be given only upon request. (People v. Middleton (1997) 52 Cal.App.4th 19, 31-33.)
If Hayne believed the instruction, which is an accurate statement of the law, needed clarification or amplification, it was incumbent upon him to request an amplifying or clarifying instruction in the trial court. Having failed to do so, he has forfeited any claim on appeal that the instruction needed amplification or clarification. (People v. Russell (2010) 50 Cal.4th 1228, 1273 (Russell).)
We also reject Hayne's contention that CALCRIM No. 570, addressing provocation as it may reduce murder to manslaughter, confused the jury. Nothing in the language of CALCRIM No. 570 addresses the effect of provocation on premeditation or deliberation, as in CALCRIM No. 522. Absent evidence to the contrary, and there is none here, we assume that jurors are intelligent persons capable of understanding and correlating all of the instructions that they are given. (People v. Ayers (2005) 125 Cal.App.4th 988, 997.) Again, if Hayne believed the instruction needed clarification, it was incumbent upon him to request it. (Russell, supra, 50 Cal.4th at p. 1273.)
Finally, any error did not result in a miscarriage of justice. (People v. Breverman (1998) 19 Cal.4th 142, 178.) There is little or no evidence that McDaniel provoked Hayne into killing her. Hayne explained in his confession that McDaniel was "just going about her routine" and he was "agitated" about financial issues. Even if Hayne's initial attack of McDaniel, where he choked her until she was unconscious, could somehow be viewed as provoked, McDaniel could not have done something while she was unconscious to provoke Hayne into then going into the kitchen to retrieve a knife to cut McDaniel's throat and kill her.
DISPOSITION
The judgment is affirmed.
CORNELL, J. WE CONCUR: LEVY, Acting P.J. FRANSON, J.