Opinion
A149753
10-09-2018
THE PEOPLE, Plaintiff and Respondent, v. BRENDA FANNY MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. NF437112)
Defendant Brenda Fanny Martinez was convicted of second degree murder by use of a deadly weapon after she beat the victim to death with a baseball bat. Defendant was sentenced to an aggregate term of 16 years to life in prison. On appeal, she contends her conviction must be reversed because the trial court erred prejudicially by: (1) unduly restricting the testimony of her psychiatric expert; (2) failing to properly instruct the jury on implied malice; (3) refusing to instruct in involuntary manslaughter; and (4) failing to instruct that mental illness evidence is admissible to determine credibility. We conclude the abstract of judgment requires a minor correction. We otherwise affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Information
On December 31, 2015, an information was filed charging defendant with the murder of the victim (Pen. Code, § 187, subd. (a)). Great bodily injury and deadly weapon use allegations were attached to the charge. (§§ 1203.075, subd. (a), 12022, subd. (b)(1).) II. Evidence at Trial
All further statutory references are to the Penal Code except as otherwise indicated.
A. The Prosecution's Case
On July 4, 2015, at about 8:30 p.m., defendant arrived at the police station and asked to speak with an officer after she contacted dispatch by picking up an emergency phone outside the station. She subsequently notified officers that she had killed someone with a baseball bat. She gave the officers a set of keys and said they were for the apartment where the individual had been killed.
Sergeant Kurt Rodenspiel knew defendant from a previous case in 2010, in which she had been the victim of a rape. They formed a friendship relationship during that time while preparing for related court proceedings. On the day of the murder, he was at the station and received a phone call from defendant saying that she needed his help. He went outside to meet her. She was manic and frantic, telling him that she had "killed her." He asked her to calm down and explain. Other officers who were with him recorded defendant stating that she had just "snapped" and killed someone. Subsequently, Rodenspiel received confirmation that the victim was, in fact, dead.
When officers went to the apartment, they found the body of a woman in a squatting position, bent facedown over the cushion area of a couch. An officer checked for a pulse and moved the woman's body down to the floor. He determined the woman was deceased. An aluminum baseball bat was resting on the couch over a pool of blood. The physician who conducted the autopsy determined the immediate cause of the victim's death was a fat embolism in her lungs, which had formed as a result of bruises or broken ribs. Her body had sustained no less than 38 separate areas of injury. Six of her ribs had fractures. Laboratory testing established that the victim did not have any drugs or alcohol in her blood.
In 2015, Felicia Sutphen was living in the same apartment building as the victim. Defendant also lived in an apartment in this building. Defendant and the victim appeared to be friendly to each other but would have arguments "off and on." On one occasion in the Spring of 2015, defendant and the victim were arguing because the victim reportedly owed defendant some money. Defendant said: "That bitch don't know me. I will fuck around and kill her one of these days." Sutphen dismissed the remark, believing defendant was just venting because she was angry. Sutphen was aware that both defendant and the victim had mental health issues. She described the victim as "soft spoken" and "quiet."
David Peters, who had lived in this same apartment building for five years prior to the murder, also stated that defendant and the victim had appeared to be close friends prior to July 2015. He would see defendant at the victim's apartment almost daily. About a week or less before the Fourth of July, Peters heard defendant yelling while she was inside the victim's apartment. He was not able to make out what was being said. Another neighbor testified that just prior to July 4, 2015, defendant's behavior had changed in that she was angry all the time or "just saying off the wall things." The neighbor remembered defendant yelling at the victim about money in an overpowering manner.
Jacob Treskovich is a psychiatrist with Caminar for Mental Health in San Mateo (Caminar). Defendant had 30-minute medication management appointments with him about once every month. His notes reflect that in March 2015, defendant mentioned she and the victim were having some conflicts. Defendant was concerned about the victim's mental status. Also, she said she wanted to continue their friendship but felt like the victim was not reciprocating. Defendant reacted to the situation by getting angry, which Treskovich thought was out of her care and concern for the victim. She did not express any homicidal ideations. By June 2015, defendant was still having problems with the victim and was trying to distance herself from her. Defendant's diagnosis was major depressive disorder, posttraumatic stress disorder (PTSD) and borderline personality disorder (BPD). She was prone to angry outbursts when in stressful situations.
Kelsey Fuller works at Caminar as a case manager. Defendant was in a program designed for people who are doing well in the community. Caseworkers would see clients in these programs once or twice per month. Defendant could decide whether to attend meetings with Treskovich, and there were quite a few months when she refused to come into the clinic to see him.
Fuller's progress notes reflect that in November 2014 defendant reported that the victim had accused her of stealing $9,000. Defendant said, "I will fucking kill that bitch if I talk to her." She also said that the victim "is not worth going to jail or prison over. I know myself better than anyone else and that is why I'm ignoring her, just blocking it all out." On February 6, 2015, Fuller spoke to defendant after being informed by the director of case management that defendant had made a threat against her neighbor. At first, she acted like she did not know what Fuller was talking about. She then admitted that the victim, whom she referred to as "that bitch," had accused defendant of stalking her. Defendant said, "She needs to stay the fuck away because I don't want to hurt her and that's what I told the police yesterday." Defendant also said that she did not want Fuller to be her case manager anymore because Fuller was also the victim's case manager, and "I know that bitch is talking shit about me, and she has even told me." After the trial court erroneously sustained an objection, the parties stipulated Fuller would have testified that defendant is impulsive.
B. The Defense Case
Defendant testified in her defense. She said that the victim was her friend, but she sometimes had "fallings-out" with her. On July 4, 2015, they were on friendly terms when she went to the victim's apartment to help move a large television. After moving the television, she stayed in the victim's apartment. They smoked cigarettes. Defendant drank a cola and the victim drank a beverage called 2-1-1. The victim was a little bit agitated, and during their conversation she started nagging defendant by telling her that she was a burden to people in the Caminar program. Defendant reacted by yelling at her. The victim said that people in Caminar used to talk about defendant's history of abuse. She then started saying that defendant deserved everything that had happened to her since she was a child, including rapes, beatings, and coming under child protective services.
Defendant reacted by punching the victim one time in the face. The victim started laughing and said, "See, that's why everybody is right about you." At that point, defendant "just lost it." She hit the victim with the baseball bat twice in the head. After that, defendant could not remember what she did. When it was over, she got a blanket and put it over the victim's body. Then she showered and took a taxi to the police station to see Rodenspiel. On cross-examination, she admitted she knew that the victim kept a baseball bat in her apartment. She also admitted that at some point the victim asked her to stop hurting her. But she denied criminal intent: "What I'm saying is when I hit her with the bat I didn't even think I was going to kill her. I didn't think that this was going to happen. I didn't think any of it. I didn't do it on purpose."
Dr. Jeffrey Weiner is a psychiatrist. He met with defendant 12 times for a total of 19 hours and also reviewed her extensive medical records. He opined that defendant suffers from BPD, chronic depression, and has some symptoms of chronic PTSD. She has been hospitalized multiple times for psychiatric issues, and has been placed in residential treatment centers multiple times. She also was in a mental health conservatorship for a total of 17 years. He did not believe her to be psychotic. Of all of her disorders, the most important for defendant is her BPD.
Weiner observed BPD symptoms in defendant, such as "shifting" in the nature of relationship, which occurs when there is a perceived betrayal and a person is seen as having transformed from a friend to an enemy. She also showed emotional volatility, cognitive distortions, suicidality and homicidal wishes, as well as the desire to harm others who she believed had hurt her. He explained that people with BPD can be unusually sensitive to actions, behaviors, and statements that they consider to be insulting, humiliating, or slighting. They may react very quickly and strongly to a perceived humiliation. The reaction could range from cursing or berating the other person to, in seriously disturbed cases, becoming physically and emotionally aggressive. On cross-examination, Weiner stated that defendant did not have any clinical history of blackouts.
C. The Prosecution's Rebuttal
Sergeant Matthew Lethin testified that there was a large beer can on a chair by the door in the victim's apartment. Inside the can was a cigarette butt. There was no liquid in the can. He did not know when the beer in the can had been consumed. There were no other items of alcohol in the living room area.
Dr. Jonathan French is a psychologist. He met with defendant and reviewed her history of mental illness. He concluded she has BPD, chronic PTSD, and depressive disorder. He reviewed her records, including a 2002 report from Napa State Hospital. The report states that she "makes parasitic attachments to vulnerable clients and threatens them if they are not a willing host or container for her emotional chaos. Looks for willing host on whom to discharge intolerable interpsychological turmoil." French found this quote to be relevant because it describes one of the main dynamics of a serious BPD diagnosis, and also because it resonated with features of the present case.
French believed defendant had credibility issues as far as her over-reporting a history of sexual abuse in her family. He also believed she had projection (role reversal) issues in that she had accused the victim of berating her in front of her neighbors, while they reported the opposite had actually occurred. There were other such instances in which French believed defendant had accused the victim of attitudes and behaviors that defendant herself displayed. He opined that defendant was preoccupied with her own victimization. She said her life was misery because the rest of the world was against her. Yet the records showed pretty clearly that she was typically the aggressor. He also noted that defendant became angry and threatened to kill the victim while talking with her own caseworker when the victim was not present.
When French interviewed defendant, he did not notice that she had any memory issues. He also opined that a person with BPD commonly shows marked impulsivity and difficulty controlling anger. During periods of extreme stress, they may experience dissociative symptoms, though they typically still understand the nature and consequences of their acts. III. Pertinent Jury Instructions and Argument
The prosecutor pointed out that defendant was younger than the victim and twice her size. He noted that the victim had no alcohol in her system when she died. He also stated that when defendant first came to the police station after the murder, she did not mention that she had experienced any blackouts or any transitory dissociative states. Instead, she admitted to the officers that the victim was dead and that defendant had "beat her ass up." The prosecutor also advised the jury that mental illness can reduce murder from first degree to second degree because provocation can be subjective. However, to reduce a murder to voluntary manslaughter, the provocation must be evaluated under an objective standard. Defense counsel used his argument to advocate that the case was one of voluntary manslaughter.
On the day of the crime, the victim was 66 years old and stood five feet one inch tall and weighed 144 pounds. Defendant was 40 years old, stood approximately five feet six inches tall and weighted approximately 290 pounds.
Among other things, the jury was instructed on first degree murder, second degree murder, and voluntary manslaughter. The court refused to instruct on involuntary manslaughter. IV. Verdict and Sentencing
On August 9, 2016, the jury found defendant not guilty of first degree murder, but guilty of second degree murder. The allegation for use of a deadly weapon was found to be true.
On September 22, 2016, the trial court sentenced defendant to 15 years to life for the homicide, plus one year for the deadly weapon enhancement. She was given 446 days of actual credits for time served since her arrest.
DISCUSSION
I. The Trial Court Did Not Improperly Restrict the Expert's Testimony
Defendant contends the trial court prejudicially erred in unduly restricting her psychiatric expert's testimony regarding her dissociated mental state at the time of the homicide. Specifically, she argues that Weiner should have been allowed to discuss how her mental disorders affected her at the time of the offense: "He should have been allowed to offer an opinion that [defendant] entered a disassociated state at the time of the incident and that this was consistent with her mental disorders and their characteristics." She claims "[t]he only thing Dr. Weiner could not do was give his opinion concerning whether [defendant] did or did not act with a specific intent or mental state required for the charged crime in legal terms."
"A trial court's decision to admit or exclude expert testimony is reviewed for abuse of discretion." (People v. Pearson (2013) 56 Cal.4th 393, 443 (Pearson).) Under that standard, we will not disturb the trial court's decision unless it was arbitrary, capricious, or patently absurd, resulting in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Evidence of mental disease, defect, or disorder is not admissible on the question of whether a defendant had "the capacity to form" the specific intent to commit the crime charged. (§ 28, subd. (a).) While this evidence is admissible on the question of whether the defendant "actually formed" that intent (ibid.), whether the defendant did so is a question for the jury (§ 29). Thus, an expert may not opine on the ultimate question of whether the defendant had the required mental state at the time he or she committed a crime. (Ibid.; see People v. Mills (2012) 55 Cal.4th 663, 672, fn. 4.)
Section 28 provides: "(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."
Section 29 provides: "In the guilt phase of a criminal action, any expert testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact."
Delineating the proper scope of expert testimony from mental health professionals on this subject always boils down to whether the expert's proposed testimony expresses an opinion " 'tantamount to' " (People v. Cortes (2011) 192 Cal.App.4th 873, 910 (Cortes)) or the "functional equivalent of" (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1327 (Bordelon)) an opinion the defendant did or did not have the requisite criminal intent ("the ultimate fact"). For "[a]n 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." (People v. Nunn (1996) 50 Cal.App.4th 1357, 1364 (Nunn).)
"[S]ections 28 and 29 do not prevent the defendant from presenting expert testimony about any psychiatric or psychological diagnosis or mental condition he may have, or how that diagnosis or condition affected him at the time of the offense, as long as the expert does not cross the line and state an opinion that the defendant did or did not have the intent, or malice aforethought, or any other legal mental state required for conviction of the specific intent crime with which he is charged." (Cortes, supra, 192 Cal.App.4th at p. 908.) These sections "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 defense. They preclude only expert opinion that the element was not present." (People v. Coddington (2000) 23 Cal.4th 529, 583 (Coddington), overruled on another point by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13).) "By its terms, section 29 prohibits an expert witness from giving an opinion about the ultimate fact whether a defendant had the required mental state for conviction of a crime. It prohibits no more than that." (People v. Ochoa (1998) 19 Cal.4th 353, 431.)
Before trial, the prosecution brought an Evidence Code section 402 motion to limit psychiatric evidence. In response, defense counsel filed a motion to permit defense experts to testify about defendant's mental health history and to opine on a hypothetical question regarding intent. Defense counsel asked the trial judge if he would be allowed to ask the expert witnesses a hypothetical question, based on the facts in evidence, such as "is it reasonable that such a person did not have, let's say, something akin to malice aforethought just prior to swinging a baseball bat." The court concluded defense counsel's proposed hypothetical questions "cross that line" of what is permissible under sections 28 and 29.
During Weiner's testimony, the trial court sustained the prosecutor's objection to a hypothetical question posed by defense counsel, stating that the question violated the trial court's in lime ruling. The question was: "Now, I want to ask you to just assume a set of facts. So assume there's a man who has PTSD and has borderline personality disorder having a conversation with a friend and feels that the friend said something insulting to him." The court, however, did allow counsel to ask the following question instead: "If a person with borderline personality disorder feels slighted by somebody[,] what are some reactions you can expect to see in them?"
Pursuant to sections 28 and 29, an expert is permitted to testify that a defendant's mental condition may cause him or her to act impulsively (i.e., without malice or premeditation and deliberation) in certain situations. (Nunn, supra, 50 Cal.App.4th at p. 1365.) Such an opinion is "relevant to the existence vel non of the mental states of premeditation and deliberation . . . ." (Coddington, supra, 23 Cal.4th at p. 583.) For example, it is permissible for a psychiatric expert to opine "that [the defendant], because of his history of psychological trauma, tended to overreact to stress and apprehension," that "such condition could result in [the defendant] acting impulsively under certain particular circumstances," and that a particular encounter "was the type that could result in an impulsive reaction from one with [the defendant's] mental condition." (Nunn, at p. 1365.)
But the expert may not testify that the defendant actually acted impulsively at the time he or she committed a crime. (Nunn, supra, 50 Cal.App.4th at p. 1365.) Nor can an expert testify whether a hypothetical person in the defendant's situation would have acted impulsively. (Bordelon, supra, 162 Cal.App.4th at p. 1327.) Section 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 or she] acted." (Nunn, at p. 1364.) For example, the Supreme Court has held that objections were properly sustained to attempts to elicit from the defense expert testimony that "(1) '[defendant] seemed to be [in] a reactive kind of state, rather than . . . cold and calculated'; (2) '[At the time of the crimes, defendant] didn't seem to know what he was doing'; and (3) 'defendant's impairment . . . [was] . . . part of why he couldn't handle the stress he was under [at the time of the commission of the crimes].' " (Pearson, supra, 56 Cal.4th at p. 451.)
Relying on Nunn, Cortes, People v. Herrera (2016) 247 Cal.App.4th 467 (Herrera), and People v. Young (1987) 189 Cal.App.3d 891 (Young), defendant contends the trial court erred because it "prevented Dr. Weiner from offering an opinion as to how [defendant's] mental illness or disorder affected her at the time of the offense." To the contrary, these cases suggest to us that the trial court did not impermissibly restrict Weiner's testimony.
In Nunn, supra, 50 Cal.App.4th 1357, the defendant, a Vietnam veteran, had shot at a group of men who were standing near the fence of a property he was caring for and, in his view, engaging in threatening behavior. (Id. at pp. 1360-1361.) A report prepared by the defendant's expert psychologist stated that the defendant's " 'tendency to overreact, coupled with his level of inebriation, resulted in his impulsive firing of the weapon.' " Prior to his testimony, the trial court instructed the expert that this opinion was inadmissible, but that he was free to testify to his other findings and conclusions. (Id. at p. 1362.) The Court of Appeal affirmed this ruling. The court found the expert was properly allowed to opine that the defendant, because of his history, "tended to overreact to stress and apprehension," that his condition might result in his "acting impulsively under certain particular circumstances," and that the encounter with the men at the fence "was the type that could result in an impulsive reaction from one with [the defendant's] mental condition." (Id. at p. 1365.) "What the doctor could not do, . . . was to conclude that appellant had acted impulsively, that is, without the intent to kill, that is, without express malice aforethought." (Ibid.)
In Cortes, supra, 192 Cal.App.4th 873, the trial court ruled the expert could testify about dissociation and PTSD in general, but could not testify about the defendant's mental condition at all. (Id. at pp. 891-892.) The court excluded expert opinion that the defendant "was in a dissociative state" or "had PTSD at the time" when he stabbed the victim repeatedly and then fled. (Cortes, at pp. 899-900.) The Court of Appeal reversed, finding that such evidence was admissible and that the trial court abused its discretion by excluding it. The court thought it was "clear" that "[t]he trial court abused its discretion in refusing to permit [expert testimony] about defendant's particular diagnoses and mental condition and their effect on him at the time of the offense." (Id. at p. 909.) In answering "[t]he more difficult question[,] how much of [the expert's] testimony should the trial court have admitted" (id. at p. 909), the court "start[ed] from the premise that, at a minimum, [the expert] should have been permitted to testify to defendant's [psychiatric] diagnoses" and "upbringing and traumatic experiences as a child and/or adolescent, inasmuch as defendant's prior traumatic experiences informed [the expert's] opinion" (id. at p. 910).
In Herrera, supra, 247 Cal.App.4th 467, the trial court ruled that the PTSD expert could not testify as to "anything related to [the defendant's] mental state at the time . . . of the offense." (Id. at p. 477.) Based on that ruling the court sustained objections to questions eliciting the expert's opinion " 'as to whether [the defendant] was suffering from [peritraumatic dissociative state],' 'whether he was psychiatrically impaired,' and 'whether he suffered from [PTSD]' on the date of the murder." (Id. at p. 475.) Similar to the opinion in Cortes, the Court of Appeal found error, concluding that the relevant authority does not "restrict testimony that the defendant had a particular mental state" at the time of the offense, "only the particular mental state that is an element of the offense." (Ibid., italics added.) As we have indicated already, and will discuss further below, the trial court here did not impermissibly restrict testimony as to defendant's mental state at the time of the offense.
Finally, in Young, supra, 189 Cal.App.3d 891, the defendant was convicted of first degree murder after he drove onto a sidewalk and struck a number of pedestrians, killing one. (Id. at p. 895.) The defendant had a history of mental illness (specifically, schizophrenia). At trial, two psychiatrists testified that the defendant suffered from delusions and that his "reasoning was psychotic." (Id. at p. 898.) One psychiatrist testified that the defendant's mental illness "affected [his] reasoning at the time of the charged offenses." (Id. at p. 907.) On appeal, the defendant complained that the psychiatrists were prohibited from testifying that his mental illness " 'interfered with his having malice on the night of the offenses.' " (Id. at p. 906.) The court disagreed, noting that the experts had been able to " 'present lengthy testimony describing [his] mental illness and its effect on his conduct.' " (Id. at p. 907.) The court held that despite the limitation on the expert testimony, the defendant was "afforded the opportunity to present to the jury the relevant evidence as to his mental condition" at the time of the offense. (Ibid.)
Having reviewed the above cases, we conclude defendant's claim of error rings hollow. Here, the trial court ruled only that Weiner could not, in the guise of a hypothetical, use defendant's mental health symptoms to opine that she could not have formed legally required mental states such as specific intent, malice aforethought, premedication, and/or deliberation. Defendant complains that Weiner should have been allowed to "offer an opinion that [defendant] entered a disassociated state" at the time of the incident and that this state was consistent with her mental disorders. But the trial court did not prohibit such testimony. The only question defense counsel was prohibited from asking was a hypothetical question that mirrored the facts of the case and was clearly intended to elicit testimony that defendant could not have formed a mental state required for the crime. Contrary to the implication in defendant's opening brief, Weiner was never asked whether defendant had entered a "disassociated state" at the time of the incident, and the court did not make any ruling on the propriety of such a question. Defendant cannot challenge admissibility of evidence at trial when she did not press the trial court for a ruling that could then be subject to review. (See People v. Valdez (2012) 55 Cal.4th 82, 142-143; People v. Braxton (2004) 34 Cal.4th 798, 813.)
Even if the trial court did err, the error is harmless. The harmless error standard for the erroneous exclusion of expert mental health testimony is fixed by state law. (Cortes, supra, 192 Cal.App.4th at p. 912.) Under this standard, defendant was prejudiced if it is reasonably probable she would have achieved a more favorable result had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant contends review should be conducted under Chapman v. California (1967) 386 U.S. 18 because she was denied the right to present a defense in violation of her federal due process rights. (See Crane v. Kentucky (1986) 476 U.S. 683, 690 [exclusion of testimony regarding circumstances of confession violated defendant's right to present defense].) We disagree. (See People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4 ["only evidentiary error amounting to a complete preclusion of a defense violates a defendant's federal constitutional right to present a defense"].)
Notwithstanding the trial court's restriction, defense counsel ably presented relevant evidence as to defendant's mental condition. Weiner testified as to defendant's psychiatric disorders and how those disorders can effect reactions to stressful situation. For example, he testified that people with BPD can become paranoid and hyperalert for behavior that may be perceived as hostile. Consequently, "people with [BPD] can behave emotionally driven in very aggressive ways." He noted impulsivity is typical, and those with the condition can slip into dissociative states characterized by "emotional flooding" that overwhelms normal cognitive awareness of events from moment to moment.
Weiner also was permitted to testify extensively about defendant's childhood traumas, history of hospitalizations, diagnoses of BPD and PTSD, and how such conditions manifested themselves generally and in her life. He described how he believed defendant could be triggered to act impulsively when facing a perceived humiliation. He further described how her BPD could make her paranoid, hyperalert to perceived hostility, and emotionally aggressive. This is not a case like Cortes, supra, 192 Cal.App.4th 873, where the expert's testimony was so restricted the jury learned nothing about the defendant's diagnoses and had no basis to connect the expert's testimony about dissociation in general with the defendant in particular. Here, unlike in Cortes, the jury had ample basis to infer that defendant had acted impulsively such that she might not have deliberately premeditated the killing or formed the intent to kill. (Cortes, at p. 912.) In fact, despite the restrictions on Weiner's testimony, the jury evidently did infer defendant lacked the requisite intent for first degree murder, despite overwhelming evidence that she inflicted numerous traumatic wounds on the victim's body. (See People v. Pride (1992) 3 Cal.4th 195, 248 [jury could infer that murder was premeditated and deliberated where victim was stabbed multiple times while pinned down and rendered helpless].)
Nor is it reasonably probable that additional admissible psychiatric testimony would have negated the element of implied malice as required for second degree murder. "The concept of implied malice has both a physical and a mental component. [Citations.] . . . The mental component . . . involves an act ' "deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. . . ." ' " (People v. Nieto Benitez (1992) 4 Cal.4th 91, 106-107 (Nieto Benitez.) Defendant acknowledged that hitting the victim with the bat was an act dangerous to human life. She also admitted that she deliberately struck the victim with the bat knowing that doing so could hurt or kill the victim. Nothing Weiner could have permissibly testified to would have altered that evidence, which directly supports the existence of an implied malice mental state. Any error was thus harmless. II. Instruction on Implied Malice
The trial court instructed the jury with CALCRIM No. 520, which informed the jury in part that "[t]he defendant acted with implied malice if: [¶] 1. She intentionally committed an act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; [¶] 3. At the time she acted, she knew her act was dangerous to human life; [¶] AND [¶] 4. She deliberately acted with conscious disregard for human life."
Defendant argues the physical component of implied malice requires an act with a "high probability of death," which she apparently views as a stricter standard than an act the natural and probable consequences of which are "dangerous to . . . life." However, our Supreme Court has held that "high probability of death" is equivalent to "natural and probable consequences dangerous to life." (Nieto Benitez, supra, 4 Cal.4th at p. 114, conc. opn. of Mosk, J.)
The "high probability of death" language originated in a concurring opinion in a 1953 California Supreme Court case. (People v. Knoller (2007) 41 Cal.4th 139, 156-157 (Knoller), citing People v. Thomas (1953) 41 Cal.2d 470, 480, conc. opn. of Traynor, J. (Thomas).) The "natural consequences of which are dangerous to life" language dates from the 1966 decision in People v. Phillips (1966) 64 Cal.2d 574, 587 (Phillips). (Knoller, at p. 157.) The California Supreme Court has held that, although the two tests "articulate[] one and the same standard" (People v. Dellinger (1989) 49 Cal.3d 1212, 1219), the "straightforward language" of Phillips is preferable to the "obscure phraseology" of Thomas (Dellinger, at p. 1221). Knoller reiterated this view in the course of deciding a different point, i.e., that a trial court improperly imputed the "high probability" standard to the subjective component of implied malice. (Knoller, at p. 157 & fn. 5.) For the objective component, Knoller said the "better practice" is for trial courts to use Phillips test rather than Thomas test. (Id. at p. 157, fn. 5.) "[I]mplied malice requires a defendant's awareness of engaging in conduct that endangers the life of another — no more, and no less." (Id. at p. 143.) The court's statements regarding Phillips represents the law we must apply in this matter. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).) We therefore conclude defendant's argument fails. III. Failure to Instruct on Involuntary Manslaughter as a Lesser Included Offense
Defendant claims the trial court erred in refusing defense counsel's request for jury instructions on involuntary manslaughter as a lesser included offense. She asserts two theories in support of her claim, "diminished actuality" and criminally negligent homicide. We conclude the court properly rejected the requested instruction on involuntary manslaughter based on overwhelming evidence that defendant was aware that beating someone with a baseball bat is an act dangerous to human life. However, even if we were to conclude that defendant presented sufficient evidence of diminished actuality or negligent homicide, and that the court erred in failing to instruct on involuntary manslaughter, the error was harmless. (People v. Sedeno (1974) 10 Cal.3d 703, 720 (Sedeno), disapproved in part on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89; People v. Flannel (1979) 25 Cal.3d 668, 684.)
Involuntary manslaughter results where the killing occurred "in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b); People v. Dixon (1995) 32 Cal.App.4th 1547, 1550, fn. 2.) "[R]egardless of the manner an act of involuntary manslaughter is committed, the killing must be unintentional." (Dixon, at p. 1556, italics omitted.) Involuntary manslaughter is a lesser included offense of murder. (People v. Heard (2003) 31 Cal.4th 946, 981.)
The court has a duty to instruct on lesser included offenses "whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present." This rule applies regardless of whether defendant requested the instruction. (People v. Lewis (2001) 25 Cal.4th 610, 645 (Lewis), citing People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) Although the court need not instruct on theories "not supported, or only weakly supported by the evidence" (People v. Reeves (2001) 91 Cal.App.4th 14, 51), the duty to instruct extends to all lesser included offenses that are supported by substantial evidence. (Lewis, at p. 645; Breverman, at pp. 148-149.) In this context, " '[s]ubstantial evidence is evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' " (Lewis, at p. 645.)
The failure to instruct on a lesser included offense is subject to our independent review. (People v. Manriquez (2005) 37 Cal.4th 547, 587.) We acknowledge on one hand that " '[a] defendant has a constitutional right to have the jury determine every material issue presented by the evidence . . .[;] an erroneous failure to instruct on a lesser included offense constitutes a denial of that right; and . . . such error cannot be cured by weighing the evidence and finding it not reasonably probable that a correctly instructed jury would have convicted the defendant of the lesser included offense.' " (People v. DeJesus (1995) 38 Cal.App.4th 1, 18.) "On the other hand, an error in failing to instruct on a lesser included offense will be deemed harmless where the record reflects the jury must necessarily have determined the factual question posed by the omitted instruction in the context of another, properly given instruction." (Ibid.; see Sedeno, supra, 10 Cal.3d at p. 721 [error harmless where the jury convicted the defendant of first degree murder rather than second degree murder].)
Defendant relies on People v. Saille (1991) 54 Cal.3d 1103 in arguing she was entitled to the involuntary manslaughter instruction based on diminished actuality. One of the issues in Saille was whether, in light of the abolition of the diminished capacity defense, California law still permitted "reduction of what would otherwise be murder to nonstatutory voluntary manslaughter due to voluntary intoxication and/or mental disorder." (Id. at p. 1107.) The court explained: "In amending section 188 in 1981, the Legislature equated express malice with an intent unlawfully to kill. Since two distinct concepts no longer exist, there has been some narrowing of the mental element included in the statutory definition of express malice. A defendant, however, is still free to show that because of his mental illness or voluntary intoxication, he did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought)." (Id. at pp. 1116-1117, italics omitted.) The court continued in dictum: "In a murder case, if this evidence is believed, the only supportable verdict would be involuntary manslaughter or an acquittal. If such a showing gives rise to a reasonable doubt, the killing (assuming there is no implied malice) can be no greater than involuntary manslaughter." (Id. at p. 1117.)
See People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1450, which states that diminished actuality "remains a viable concept. While the Legislature, in eliminating the diminished capacity defense, 'precluded jury consideration of mental disease, defect, or disorder as evidence of a defendant's capacity to form a requisite criminal intent, . . . it did not preclude jury consideration of mental condition in deciding whether a defendant actually formed the requisite criminal intent.' " (Italics omitted.) --------
Both implied malice murder and involuntary manslaughter involve a disregard for life, but murder is judged by a subjective standard, while involuntary manslaughter is judged by an objective standard. (People v. Butler (2010) 187 Cal.App.4th 998, 1008-1009.) Implied malice murder requires a defendant's conscious disregard for life, meaning he subjectively appreciated the risk involved, while involuntary manslaughter merely requires that a reasonable person would have been aware of the risk. (Ibid.) Implied malice " 'contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence.' " (Id. at p. 1008, fn. 5.)
An instruction on involuntary manslaughter as a lesser included offense must be given when a rational jury could entertain a reasonable doubt that an unlawful killing was accomplished with implied malice. (People v. Brothers (2015) 236 Cal.App.4th 24, 33-34.) However, "when, as here, the defendant indisputably has deliberately engaged in a type of aggravated assault the natural consequences of which are dangerous to human life, thus satisfying the objective component of implied malice as a matter of law, and no material issue is presented as to whether the defendant subjectively appreciated the danger to human life his or her conduct posed, there is no sua sponte duty to instruct on involuntary manslaughter. [ Citations.] Otherwise, an involuntary manslaughter instruction would be required in every implied malice case regardless of the evidence." (Id. at p. 35.)
There was substantial evidence that defendant consciously realized yet disregarded the risk to the victim's life when she beat the latter to death. Conversely, there was no substantial evidence that she failed to realize the risk her actions presented, or that the killing was unintentional. She testified that she first punched the victim in the face with her fist, after which the victim pleaded, " 'Don't hurt me.' " She knew she was hurting the victim, because she told the victim why she was hurting her: "I just told her that I was tired. I got tired." Defendant also conceded that she deliberately struck the victim on the head with the bat knowing that it could hurt or even kill her. Her mental health expert witness reported that she was not psychotic, was "aware of the nature and circumstances of her actions, " and was "capable of knowing right from wrong." Nor did she suffer from any cognitive defects.
Even if we were to conclude there was sufficient evidence to justify defendant's instruction on involuntary manslaughter, the error in failing to give the instruction was harmless. The court instructed the jury on first and second degree murder. Had the jury found that the prosecution failed to prove beyond a reasonable doubt that defendant acted with implied malice, it had the option of acquitting defendant of murder. Instead, the jury found defendant guilty of second degree murder. There was no prejudice. (Sedeno, supra, 10 Cal.3d at p. 721.) IV. Limitation on Evidence of Mental Illness
The trial court instructed the jury with CALCRIM No. 3428 as follows: "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 intent or mental state is defined in the instructions for each alleged crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, as defined by these instructions. [¶] If the People have not met this burden, you must find the defendant not guilty."
On appeal, defendant argues that the instruction on evidence of mental illness precluded the jury from considering such evidence in assessing her credibility. However, prior to the court's instructing the jury, defendant's counsel expressly agreed with this version of the instruction. He did not propose any instruction language advising the jury that it could consider evidence of defendant's mental condition in evaluating the veracity of her testimony.
We observe there is no sua sponte duty to give CALCRIM No. 3428. It is an optional pinpoint instruction and the court had no duty to give it, or to give a modified version of it, absent a request by counsel. (People v. Ervin (2000) 22 Cal.4th 48, 91.) We are bound by Ervin. (Auto Equity, supra, 57 Cal.2d at p. 455.) V. Cumulative Error
Defendant contends that cumulative prejudice from the trial court's errors requires reversal. As explained above, however, the claimed errors either did not occur, or they were harmless. Therefore, we reject defendant's assertion of cumulative error. VI. Defendant's Custody Credits Must Be Corrected
Defendant contends that she is entitled to 447 days of presentencing custody credit, which is one day more than the 446 days of credit she received. The People concede that the calculation of defendant's custody credits was erroneous.
A defendant is entitled to credit against his or her term for all actual days of confinement prior to sentencing. (§ 2900.5, subd. (a); People v. Buckhalter (2001) 26 Cal.4th 20, 30.) The parties do not dispute, and the record discloses, that defendant was arrested on July 4, 2015 and sentenced on September 22, 2016, a total of 447 days. Accordingly, the trial court is directed to issue an amended abstract of judgment crediting appellant for 447 days of actual custody credit.
DISPOSITION
The judgment is affirmed as modified to correct defendant's custody credits to 447 days. The trial court is directed to forward certified copies of the correct abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.