Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCE249592, Patricia K. Cookson, Judge. Affirmed.
HUFFMAN, Acting P. J.
A jury convicted Arthur Lee Miller of second degree murder (Pen. Code, § 187, subd. (a); count 1) and attempted voluntary manslaughter, a lesser included offense of the charged attempted murder (§§ 192, subd. (a)/664; count 2). The jury also found true that Miller personally used a handgun in the commission of both crimes (§ 12022.5, subd. (a)), personally used a handgun in the commission of the attempted voluntary manslaughter, within the meaning of section 12022.53, subdivision (b), and intentionally discharged a handgun in the commission of the murder which proximately caused great bodily injury and death, within the meaning of section 12022.53, subdivision (d). The trial court sentenced Miller to a total prison term of 55 years, six months to life.
All further statutory references are to the Penal Code unless otherwise indicated.
Miller appeals, contending the trial court erred in denying his Batson-Wheeler motion after the prosecutor used peremptory challenges to remove two Black prospective jurors thereby violating his Sixth Amendment right to an impartial jury and his Fourteenth Amendment right to equal protection. Miller also asserts that the court prejudicially erred in failing to instruct on the defense of unconsciousness as it related to second degree murder under the theory of implied malice and that the evidence was insufficient to support the jury finding of implied malice because there was no showing he was subjectively aware that smoking PCP would trigger a homicidal reaction. We affirm.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
FACTUAL BACKGROUND
In the late afternoon of April 16, 2005, Miller (aka Speed and Speedy), who lived in the Hidden Meadows apartment complex in San Diego County with his girlfriend and their two children, was working on the fuel pump in his Nissan 300ZX parked next to his Nissan Maxima in the apartment complex parking lot with his friend Richard Ashe. While they worked on the car, three men drove into the parking lot and Miller walked over to talk to them. As he was talking with them and smoking a cigarette, Miller saw his girlfriend walk to her car in the parking lot and walked over to her, giving her some money. Because Miller seemed fine at the time, his girlfriend left to run errands, leaving their five-year-old son in their apartment for Miller to watch.
After about five to 10 minutes of resumed talking with the men, Miller walked back to his car in which Ashe was then sitting. Miller, who seemed to be different to Ashe as if his mind were somewhere else, suddenly asked Ashe where his gun that he sometimes carried was. When Ashe told him he did not know, they looked in the trunk of the Maxima where they found the gun and Miller picked it up. Miller then crossed the parking lot and fired three shots at one of the apartment buildings in the complex.
Afterwards, Miller walked up the stairs to the second floor of the complex where Alan Jackson, another resident of the complex, was sitting drinking beer and listening to music on the landing at the top of the stairs with James Edwards, who did not live in the complex, but visited family and friends there regularly. Without any discussion, Miller approached Edwards from behind, pointed the gun about an inch away from the back of his head, and fired two shots in his neck. Edwards fell face forward onto the ground and Miller shot him three more times, in the lower back, arm and chest. Edwards died as a result of the multiple gunshot wounds.
Miller then walked back down the stairs and fired two more shots at the complex before turning his attention to Ashe, who was still in the parking lot. When Miller pointed the gun at Ashe, he ran away, but Miller pursued him. As they ran, Miller tried to shoot Ashe, but the gun would not fire. When Ashe ran up the stairs, he saw Edwards lying in a puddle of blood. As he ran back down the stairs, Ashe could hear the sound of the gun clicking as Miller continued to follow him. When Ashe fell down in the parking lot, Miller again unsuccessfully tried to shoot him.
As Miller was chasing Ashe, another resident of the complex saw what was happening and yelled, "Speedy, stop. Don't." Miller continued running out to the street where he removed a glove from his right hand and dropped it in the road. After he dropped the gun in the street, Miller ran into a nearby complex less than a half mile away where he was later found sitting on the ground in the parking lot. Miller was arrested without problems after being positively identified as the shooter.
A deputy then transported Miller to the Lemon Grove sheriff's station for booking and placed paper bags on his hands while he was in a holding cell to preserve any gunshot residue. As the paperwork was being processed, the deputy observed Miller without the bags urinating on his hands and rubbing them on his pants several times. The deputy's belief that Miller had urinated on his hands to try to remove gunshot residue was later confirmed when Miller confessed to a fellow inmate at jail that he had done so for that purpose.
Meanwhile back at the scene of the shooting, other deputies found the gun and glove in the street along with Miller's cellular phone, which was opened and "on." Miller's fingerprints were found on the phone. The gun, a semiautomatic Ruger 9 millimeter, was determined to be bent and defective. Deputies further found a set of five unexpended 9 millimeter rounds and an empty magazine for a Ruger 9 millimeter in the complex. Several unexpended rounds were found across from Miller's apartment. Although gunshot residue was found on Miller's glove, none was found on his hands. Deputies found two clear vials containing PCP in a search of Miller's apartment.
Miller was subsequently interviewed at 1:30 a.m., the morning after the shooting. He gave deputies his full name, date of birth, address, age of his sons, girlfriend's name, relationship status, and job information. After waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436, he gave his version of the events the day of the shooting. Sometime after 2:00 p.m. while waiting for his girlfriend to come home from grocery shopping, he and Ashe worked on the fuel pump in his car in the parking lot. As they did so, a couple of men Miller did not know drove into the parking lot in a green Cadillac. Ashe then yelled, "Hey look out, look out" and Miller heard four or five gunshots and started running. Miller continued running even though his five-year-old son was playing in the parking lot because he thought he was being chased. He ran down a hill and into another apartment complex where he hid under a pool table, staying there until the police arrived and arrested him. He believed he hurt his foot when he jumped over a fence running away from his complex.
Miller told the deputies that he had smoked some "reefer" and a cigarette containing PCP around 12 or 1 p.m. on the day of the shootings, which usually calmed him down. He also told them he had oil on his hands from working on his car and denied he was carrying a gun the day of the shooting. Miller claimed he had not carried a gun since he was a child.
When the deputies suggested that Miller might not remember what happened because his memory may have been altered by the PCP, Miller disagreed, saying that could not be the case because he did not have a gun and he would have remembered if he had shot someone. The interview lasted until 3:40 a.m.
In addition to the above evidence being presented in the prosecution case against Miller at trial for Edwards's murder and the attempted murder of Ashe, the deputies involved in arresting and transporting him to the station all testified that Miller did not exhibit any outward signs of impairment or intoxication and had been responsive to their questions.
One of the residents of the complex testified that Edwards was known for being loud and often using expletives. Just minutes before Miller shot him, the resident saw Edwards go downstairs to check on his son in an apartment. Another resident heard Edwards say "fuck you" right before he walked back up to the second floor landing and was shot.
The day before the shooting, another resident of the complex had seen Miller, who he thought was acting paranoid, pull out a black 9 millimeter gun when a car drove into the complex parking lot. That same resident saw Miller walking around with his hand on his waistband, like he had a gun, on the day of the shooting.
The parties stipulated that Miller's blood tested positive for marijuana at a level of 10.2 nanograms per milliliter and positive for PCP at 32.9 nanograms per milliliter five and a half hours after his arrest.
Defense Case
Miller's defense was that because of his PCP ingestion, he did not have the required mental state necessary to commit murder or attempted murder and was guilty at most of involuntary manslaughter. In support of this defense, he called Dr. Alex Stalcup, a physician and medical director of an outpatient drug treatment program, to testify as to the effects of PCP.
Stalcup testified that PCP causes symptoms of disassociation and "derealization," causing a person to lose their sense of person and time as well as altering sensory experiences. He stated that the degree of impairment from PCP use is equal to the impairment obtained from smoking strong marijuana or drinking three or four beers and that it was easy to overdose on PCP. He explained that PCP takes normal integrated brain functions and separates them so that there is no relationship between memory, drive, reward and reason, completely distorting a person's consciousness. Stalcup further noted that a significant number of people using PCP can develop an extreme psychotic reaction to the drug, causing them to act abnormally, like a person with schizophrenia, having delusions, hallucinations, and thought disorders. Such a person is unable to reason or remember what they are doing or why they are doing it. The usual PCP high lasts five or six hours and an adverse reaction can last anywhere from a minute up to several days.
Stalcup additionally testified that the Drug Enforcement Administration recognizes PCP as a uniquely dangerous drug that often causes the user to suffer hallucinations, mood distortion, amnesia and paranoia as well as to suffer a loss of coordination, including slurred speech. Some of the more observable effects of PCP usage are a blank stare, rapid and involuntary eye movements and an exaggerated gait. PCP may also cause acute anxiety and a feeling of impending doom, paranoia, hostility, or psychosis indistinguishable from schizophrenia. Even experienced PCP users can have an adverse reaction to the drug if they take it unwittingly or in a larger dose than expected.
Stalcup did not interview Miller in this case because PCP users often have memory failure and are very suggestible to facts provided by an interviewer. Nonetheless, Stalcup believed that the amount of PCP in Miller's system after the shooting was a sufficient amount to cause an adverse reaction and opined that Miller's behavior was consistent with an individual experiencing such a reaction to PCP.
On cross-examination, Stalcup conceded that it is impossible to determine whether a person has had a good or bad trip based on the amount of PCP in their system. He also acknowledged that the hiding or discarding of evidence after doing something wrong was an indication that the person doing so was aware of what they were doing. Additionally, Stalcup agreed that the facts a person chose a deadly weapon to shoot a human being in their vital organs and then made up a story about someone else being responsible for the crime were indications that the person was aware of what he was doing.
Defense counsel's closing argument focused on Miller's irrational behavior after smoking a cigarette with the three men in the complex parking lot, emphasizing that Ashe and several residents of the complex had described Miller as confused, zoned out, and looking wild before the shooting and attempted shooting of the victims with whom he had no disputes. Counsel challenged the testimony of the deputies concerning Miller not appearing to be under the influence as not credible, arguing that the only explanation for the shooting event was that Miller had suffered a psychotic episode, was unaware of his actions and was the poster child for an intoxication defense. Counsel further argued that Miller was functionally unconscious and guilty only of involuntary manslaughter. The jury found otherwise.
DISCUSSION
I
BATSON-WHEELER MOTION
Miller first contendsthat the trial court violated his Sixth Amendment right to an impartial jury and his Fourteenth Amendment right to equal protection by denying his Batson-Wheeler motion brought on the basis that the prosecutor had improperly used his peremptory challenges to remove the only two Blacks from the jury panel. We disagree.
A. Background
During jury selection, the prosecutor excused 17 prospective jurors, two of whom were Black (Ms. AC and Ms. CY) on peremptory challenges. After the jury, which did not include any Black jurors, was sworn in, Miller made a Batson-Wheeler motion, arguing the prosecutor had improperly exercised his peremptory challenges to remove the only two Blacks from the entire panel thereby establishing a pattern of racial discrimination. Finding that the two jurors were part of a recognizable group and appeared to be African-American, the trial court asked the prosecutor to explain his reasons for excusing the jurors.
The defense excused 15 prospective jurors on peremptory challenges, passing on its 16th challenge.
The court noted that those two jurors were "lighter-skinned" African-Americans.
When the prosecutor responded, "[a]s for [CY], she had an ex-boyfriend who is a drug user, and I felt that put her in a sympathetic posture for the case," the trial judge stated she was "satisfied, because the court does have a recall of [CY's] history [and did] not find that that was a racially-motivated peremptory challenge." The prosecutor added that he recalled that CY's boyfriend was either a drug dealer or user and "there were some issues with that."
Turning to AC, the prosecutor explained that he had asked her questions about her church and did not "feel like she was tracking [his] questions on the differences between standing in judgment of people and . . . the role of sitting as a juror versus . . . a view of the situation from a standpoint of religion or church." He also had to ask her questions several times.
When Miller's counsel commented his recollection was that AC had been clear that she had no problem putting her religious beliefs aside to determine the case and that it was his impression the prosecutor was just questioning AC on her ability to decide the case in spite of her religious beliefs "as a lesson for the rest of the jury," the prosecutor explained that the problem was not so much in her answers as in "the manner in which she answered. She didn't speak up a few times, . . . and I didn't feel like she was connecting with me."
The court found, that based on the prosecutor's remarks, "there were adequate justifications for his exercise of the peremptory challenges and certainly neutral explanations for each challenge. The court found that [AC] did, many times, hesitate before responding to the prosecutor's questions, and it would have appeared . . . that she was hesitating, and one does not know why. I suppose one explanation is hard of hearing, but the other explanation is to try and couch a response. So based upon that, the court is going to deny your Batson motion."
B. Governing Legal Principles
A prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias violates the federal and state Constitutions. (People v. Huggins (2006) 38 Cal.4th 175, 226 (Huggins); Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) When a defendant objects to the prosecutor's peremptory challenges as discriminatory, the trial court uses a three-step procedure to evaluate the issue. "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the [defendant] has proved purposeful racial discrimination.' [Citation.]" (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson), fn. omitted.)
In Johnson, the United States Supreme Court held that a defendant satisfies the first step "by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred" (Johnson, supra, 545 U.S. at p. 170) and that, if this showing were made, the trial court should not speculate about the prosecutor's reasons but should move to the second step and require the prosecutor to set forth a race-neutral explanation. (Ibid.)
These first two steps govern the production of evidence, whereas at the third step the trial court determines the persuasiveness of the defendant's constitutional claim. (Johnson, supra, 545 U.S. at pp. 169-171.) At the third step, the defendant "carries the 'burden of persuasion' to ' "prove the existence of purposeful discrimination." ' [Citations.]" (Id. at pp. 170-171.) To carry this burden, the defendant may point to such factors as the prosecutor's striking of most or all members of an identified group, the prosecutor's use of a disproportionate number of peremptory challenges against the group, the heterogeneity of the stricken jurors apart from their membership in the identified group, the prosecutor's failure to engage the stricken jurors in significant voir dire, and the prosecutor's failure to ask the stricken jurors about the issue of claimed concern. (People v. Reynoso (2003) 31 Cal.4th 903, 914 (Reynoso); Huggins, supra, 38 Cal.4th at p. 233.)
When reviewing the prosecutor's showing, the trial court may consider " 'how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy.' [Citation.]" (Huggins, supra, 38 Cal.4th at p. 233.) The prosecutor may justify the challenges by showing that they were exercised " 'on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses—i.e., for reasons of specific bias,' " or by referring " 'to the totality of the circumstances' "; for example, " 'demonstrat[ing] that in the course of . . . voir dire he also challenged similarly situated members of the majority group on identical or comparable grounds.' " (Reynoso, supra, 31 Cal.4th at p. 915.) The prosecutor's justification need not rise to the level of a challenge for cause, and "even a 'trivial' reason, [or a hunch,] if genuine and neutral, will suffice." (People v. Arias (1996) 13 Cal.4th 92, 136.) For example, a trial court may credit a prosecutor's claim of a nondiscriminatory motive based on such matters as " 'the prospective jurors' body language or manner of answering questions.' " (Reynoso, supra, 31 Cal.4th at p. 917.) "The proper focus of a Batson/Wheeler inquiry . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons." (Id. at p. 924.) However, " 'implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.' " (Id. at p. 916.)
In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, the trial judge " 'must make "a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, [her] knowledge of trial techniques, and [her] observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . ." [Citation.]' " (Reynoso, supra, 31 Cal.4th at p. 919.) The trial judge's findings " ' "largely will turn on evaluation of credibility." ' " (Id. at p. 918.) On appeal, we review the trial court's ruling on purposeful discrimination for substantial evidence. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1009 (Lewis and Oliver).) "It is presumed that the prosecutor uses peremptory challenges in a constitutional manner. We defer to the court's ability to distinguish 'bona fide reasons from sham excuses.' [Citation.] As long as the court makes a 'sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.' [Citation.]" (Ibid.)
C. Analysis
Miller specifically argues that the trial court erroneously found the prosecutor had articulated race-neutral reasons for excusing the two prospective Black jurors because the prosecutor's justifications were not supported in the record and the court did not make a reasoned and sincere attempt to evaluate those reasons. He also claims that a comparative analysis under Miller-El v. Dretke (2005) 545 U.S. 231, 241 (Miller-El) will show that the prosecutor's explanations regarding each juror were pretextual. We conclude the court properly denied the motion upon finding the prosecutor's peremptory challenges of AC and CY were not based on an improper racial bias.
With regard to AC, she mentioned during voir dire she knew a corrections officer who went to her church. When the prosecutor later asked her specifically about whether she would have the courage in spite of her religious views to find Miller guilty if the case were proven against him, AC asked him to repeat the question. When he then asked whether any of the prospective jurors had any particular religious beliefs that would impact their ability to be fair, no one responded. He then specifically asked AC to respond, saying "No? You're sort of smiling and looking at me, but you're not answering. What are you thinking?" AC asked the prosecutor to repeat the question for her. After doing so, AC answered "no" and that God's "judgment is different from . . ." When the prosecutor then asked, "From ours?," AC responded "Right now, yeah," and said she was comfortable with that role.
The prosecutor justified his removal of AC from the jury panel based on her religious beliefs and the manner in which she delivered her answers. The trial judge herself stated she had observed AC hesitating before answering or commenting on the prosecutor's inquiries. Wheeler does not preclude a peremptory challenge to a juror on the basis of the juror's relevant personal values "even though those views may be founded in the juror's religious beliefs." (People v. Martin (1998) 64 Cal.App.4th 378, 385.) Further, as already noted, a nondiscriminatory challenge may be based on " 'the prospective jurors' . . . manner of answering questions.' " (Reynoso, supra, 31 Cal.4th at p. 917.) The prosecutor is not required to present reasons that rise to the level of a challenge for cause, and could have reasonably decided on this record to peremptorily challenge AC whose manner of answering questions made it difficult to determine whether her statements really reflected her beliefs. Thus the court here could have reasonably concluded on its own observations as well as the prosecutor's statements that a race-neutral reason was offered for the excusal of AC which precluded an inference of a discriminatory purpose.
The court could likewise reasonably find that there was a race-neutral reason offered by the prosecutor for the removal of CY, who had stated that she had an ex-boyfriend who had used crystal methamphetamine and was in and out of prison for fraud, robbery, and assault. The prosecutor explained that he had excused CY because her ex-boyfriend used drugs and such might make her unreasonably sympathetic towards Miller. Generally, a prosecutor's belief that a potential juror would be unduly sympathetic to a defendant is a legitimate race-neutral based reason for a peremptory challenge. (See People v. Dunn (1995) 40 Cal.App.4th 1039, 1054.)
Additionally, the trial court could consider that the circumstances of this case were not such that they suggested a clear motive for the prosecutor to excuse African-Americans. In Johnson, the high court found there was a prima facie case of racial bias because the defendant was Black, the victim was White, and the prosecutor had excluded all three Black persons in the jury venire. (Johnson, supra, 545 U.S. at pp. 172-173.) Here, both the defendant and the victims are Black. Thus, the factual scenario here is not completely comparable to Johnson where the circumstances facially supported an inference of discrimination.
Miller also asserts the pretextual nature of the prosecutor's stated reasons for excusing AC is shown by the fact that the prosecutor did not ask any other jurors questions about their religious beliefs. We disagree. Although the failure to question other jurors about the claimed area of concern may be a valid factor to consider, here the record shows that the prosecutor asked the entire panel of prospective jurors twice, once during the questioning of AC and then later after other prospective jurors replaced ones that had been removed, whether they had any particular religious views that would impact their ability to sit in judgment of another human being or hear this case. When no other jurors responded, the prosecutor had no reason to further inquire about their religious beliefs and the lack of further questioning does not require an inference of pretext. (See Lewis and Oliver, supra, 39 Cal.4th at p. 1018, & fn. 14.)
Nonetheless, the record reveals that after several other jurors later mentioned that they knew various law enforcement or legal officers from their churches, one of whom further noted she did not drink due to her religious beliefs, both were removed as jurors by peremptory challenges (one by the prosecutor and the other by the defense). In addition, the court on its own motion excused a male juror for cause before either counsel could question him when he expressed strong concerns as to whether he could be fair to Miller because of his religious beliefs. These facts additionally lend support to the trial court's finding that the prosecutor's motive to keep strong religious beliefs out of the jury equation was not a pretext for excusing AC.
Contrary to Miller's additional argument that AC's answers that her religious beliefs would not affect her ability to serve as an impartial juror show the prosecutor's reason was pretextual, those purported assurances were not required to be accepted uncritically where as here her observable actions created some ambiguity in her answers. Under these circumstances, it appears the court found the prosecutor's reasons truthful as consistent with its own observations. We defer to the court's credibility assessment and find substantial evidence supports the court's finding that Miller did not make a prima facie showing of discriminatory purpose with regard to AC.
Finally, Miller asserts that a comparative analysis under Miller-El, supra, 545 U.S. 231, with respect to AC and CY and jurors similarly situated but not Black who were left on the jury, shows the prosecutor's discriminatory purpose in excluding AC and CY as jurors. Under a comparative analysis review, " '[i]f a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step.' " (Lewis and Oliver, supra, 39 Cal.4th at p. 1017.) In making the comparative analysis, the proper inquiry is whether the prosecutor "honestly found pertinent and legitimate dissimilarities between members of the group he challenged and [members of] the group he accepted." (Huggins, supra, 38 Cal.4th at p. 233.)
Here, Miller's counsel did not ask the trial court to do a comparative analysis before ruling on his Batson-Wheeler motion. Although our California Supreme Court has assumed, without deciding, that a comparative analysis may be undertaken for the first time on appeal in light of the United States Supreme Court doing so in Miller-El, supra, 545 U.S. 231,(see Lewis and Oliver, supra, 39 Cal.4th at p. 1017; Huggins, supra, 38 Cal.4th at p. 232), even assuming such is proper, it is not very meaningful in this case.
As already noted above, no other juror left seated was questioned about their religious beliefs in a similar manner as AC and those that did express those beliefs were excused. Because there were no remaining jurors to compare with AC and the court's own observations were involved in assessing the validity of the prosecutor's reasons for excluding her as a juror, a comparative analysis on appeal would serve no fruitful purpose and would essentially be unreliable and inconsistent with the deference we accord to the trial court in this area.
Moreover, as to CY, Miller concedes that only Juror No. 11, whom he claims is not Black and was not excused, was similarly situated to CY such as to show that the prosecutor excused CY because of her race. Miller's reliance on a comparison of CY with Juror No. 11, however, is invalid. The record clearly reflects that Juror No. 11 did not sit on the jury because the prosecutor excused her with his 14th peremptory strike. The prosecutor had also peremptorily challenged at least six other jurors who either had a substance abuse problem or knew of a family member or friend who did. The prosecutor's decision to retain other jurors who had relatives or friends with substance abuse problems may well have been motivated by countervailing factors in their background that lessened concerns about their potential bias to either party. Miller simply has not shown how a comparative juror analysis reveals any racially motivated striking of jurors in this case.
In sum, we conclude the trial court made a sincere and reasoned effort to evaluate whether the peremptory challenges were exercised for race-neutral reasons, and there is substantial evidence to support the trial court's finding of no discriminatory purpose. Accordingly, Miller's contention based on the denial of his Batson/Wheeler motion fails.
We find Miller's appellate counsel's snide remarks that the trial judge's ruling was "covering" for a biased prosecutor offensive and not supported by the record.
II
INSTRUCTIONS ON UNCONSCIOUSNESS
Miller next asserts that the trial court prejudicially erred in failing to instruct sua sponte under CALJIC No. 4.30, or otherwise inform the jurors that unconsciousness based upon a mental illness was a complete defense to the charges. We disagree.
CALJIC No 4.30 provides that "A person who while unconscious commits what would otherwise be a criminal act, is not guilty of a crime. [¶] This rule of law applies to persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or because of an attack of [psychomotor] epilepsy, a blow on the head, the involuntary taking of drugs or the involuntary consumption of intoxicating liquor, or any similar cause. [¶] Unconsciousness does not require that a person be incapable of movement. [¶] Evidence has been received which may tend to show that the defendant was unconscious at the time and place of the commission of the alleged crime for which [he] is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was conscious at the time the alleged crime was committed, [he] must be found not guilty."
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." ' [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 154.) However, a court need give an instruction concerning a defense '"only if there is substantial evidence to support the defense.' [Citation.]" (In re Christian S. (1994) 7 Cal.4th 768, 783, original italics.)
With regard to unconsciousness, our Supreme Court has recently noted that "if not induced by voluntary intoxication, [it] is a complete defense to a criminal charge. [Citations.] To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist 'where the subject physically acts but is not, at the time, conscious of acting.' [Citation.] If the defense presents substantial evidence of unconsciousness, the trial court errs in [not instructing] on its effect as a complete defense. [Citations.]" (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) Unconsciousness caused by voluntary intoxication, however, is not a complete defense and "can only negate specific intent under section 22." (§ 22; People v. Walker (1993) 14 Cal.App.4th 1615, 1621.)
Section 22 provides in pertinent part: "(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. . . . [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored malice aforethought. [¶] (c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance."
Here, although the jury instruction discussion was not reported, Miller's counsel stated on the record he was satisfied with the proposed instructions, which included CALJIC Nos. 4.21.1 and 4.22, defining voluntary intoxication for the jury and informing them that such condition could be considered on the question of Miller's mental state for the specific intent crimes charged, including the lesser offenses to those crimes. Further, consistent with Miller's defense at trial, the court instructed under CALJIC No. 8.47, which provides in part that if the jury found "that a defendant, while unconscious as a result of voluntary intoxication, killed another human being without an intent to kill and without malice aforethought, the crime is involuntary manslaughter."
Now, relying on his expert's testimony about the effects of PCP and his opinion that the amount of PCP in Miller's system five hours after his arrest could trigger a psychotic episode causing delusions and hallucinations, his pretrial interview statements that he did not remember having a gun and shooting anyone, as well as the testimony of people at the complex who described Miller as "wild in the eyes" and acting differently than usual at the time of the shooting, Miller claims that the court was also required to instruct on unconsciousness as a complete defense based on the inference he had suffered an involuntary psychotic event stemming from his voluntary ingestion of PCP.
Miller's unconsciousness claim is based on pure speculation, which does not give rise to a duty to instruct the jury. (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823.) Rather Miller's own admissions in his pretrial interview and in his appellate briefing make clear that he was voluntarily intoxicated at the time of the shootings and did not lack awareness of his actions during the course of the offenses. At no time during his interview did he claim to be unconscious, only claiming he could not recall having a gun or shooting it. However, the purposeful nature of his conduct, intentionally smoking a cigarette laced with PCP, putting on a glove before the shootings, obtaining a loaded gun from the trunk of his car, aiming the gun at his victims, shooting one victim in vital areas of the body, discarding the gun and glove before leaving the scene, hiding from police, urinating on his hands to erase any traces of gunshot residue, and making up a story about someone else shooting the murdered victim, suggest Miller was conscious and aware of his actions.
In addition, Miller's expert, who had not interviewed Miller, and thus did not testify as to Miller's mental state during the shooting or say he was unconscious during that time, agreed that the above facts tended to show consciousness. The expert also testified that a person suffering from a PCP-induced psychotic episode was insensitive to pain, whereas Miller had complained to police that his foot hurt from injuring it while running away after the shooting. None of the other witnesses at trial testified that Miller was unconscious or close to unconsciousness near the time of the crimes. His girlfriend said he seemed fine when he was talking with the men in the parking lot shortly before the shooting and the deputies who arrested Miller and interviewed him after the shooting did not observe him to be under the influence of any drugs.
Because a defendant's professed inability to remember an incident, without more, is insufficient to warrant an unconsciousness instruction (People v. Froom (1980) 108 Cal.App.3d 820, 829-830; People v. Heffington (1973) 32 Cal.App.3d 1, 10), Miller's claims of not recalling portions of the events in his pretrial interview, standing alone, were insufficient to trigger the trial court's duty to sua sponte instruct on the defense of unconsciousness. Miller's reliance on People v. Mosher (1969) 1 Cal.3d 379, People v. Moore (1970) 5 Cal.App.3d 486, 492, and People v. Lisnow (1978) 88 Cal.App.3d Supp. 21, to show otherwise is unfounded. In each of those cases the defense expert had examined the defendant and had made personal observations consistent with the defendant's claimed memory loss or mental derangement before committing a crime. As noted above, Miller's expert had not examined, tested or evaluated Miller before testifying at trial about the general effects of PCP on chronic users which could vary from person to person. Although the expert testified that some of Miller's behaviors the day of the shooting were consistent with someone suffering a psychotic episode, he also conceded that many of Miller's behaviors were inconsistent with a person suffering such an episode. The expert's testimony provided only evidence from which Miller speculates he was suffering from a psychotic episode.
On this record, we can find no substantial competent evidence that would support instruction on unconsciousness based on an involuntary psychotic episode. Although Miller was clearly voluntarily under the influence of PCP, there is simply no evidence that he was unconscious as a result of a "bad trip" or drug induced psychosis as he now claims. We therefore conclude the trial court had no sua sponte duty to instruct on unconsciousness as a complete defense in this case, or to specifically relate such defense to second degree murder under the theory of implied malice and attempted murder as claimed by Miller.
Moreover, even assuming the court should have instructed the jury on unconsciousness, any error was clearly harmless beyond a reasonable doubt in light of this record. (People v. Flood (1998) 18 Cal.4th 470, 499.) As noted above, the jury was instructed under CALJIC No. 8.47 on involuntary manslaughter due to unconsciousness caused by voluntary intoxication as well as being fully and correctly instructed on murder and its degrees, the various forms of manslaughter, the effect of voluntary drug induced intoxication on the various mental states and intents for the charged crimes and lesser offenses. Because the jury found Miller guilty of attempted voluntary manslaughter, it necessarily found he had the "specific intent to kill" and rejected the possibility that he was unconscious due to drugs. By finding Miller guilty of second degree murder, the jury also necessarily found the killing resulted from an intentional act performed by Miller with "knowledge of the danger to, and with conscious disregard for," human life, again rejecting the possibility that he was unconscious due to drugs when he committed that crime. Accordingly, no prejudicial jury instructional error can be shown on this record.
III
SUFFICIENT EVIDENCE OF IMPLIED MALICE
Lastly, Miller contends that there was insufficient evidence of implied malice to support his second degree murder conviction. He specifically argues there was no evidence to show he subjectively appreciated the risk involved because he was not aware that smoking PCP would trigger a homicidal reaction. We conclude there was sufficient evidence to support Miller's second degree murder conviction.
In reviewing a challenge to the sufficiency of the evidence to support a conviction, we view the facts adduced at trial in full and in the light most favorable to the judgment to determine whether there is substantial direct or circumstantial evidence of the existence of each element of the convicted offense. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Johnson (1980) 26 Cal.3d 557, 576-577.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusion. (People v. Arcega (1982) 32 Cal.3d 504, 518.)
In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether " ' "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [jury's] verdict," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
As pertinent here, "[t]he elements of second degree murder are: (1) an unlawful killing; (2) accomplished with malice aforethought, whether express or implied. [Citations.]" (People v. Malfavon (2002) 102 Cal.App.4th 727, 735.) Malice is "express when the defendant manifests 'a deliberate intention unlawfully to take away the life of a fellow creature.' [Citation.]" (People v. Lasko (2000) 23 Cal.4th 101, 107 (Lasko).) A defendant acts with implied malice " 'when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.' " (§ 188.) Malice is implied " 'when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life' [citation]." (Lasko, supra, 23 Cal.4th at p. 107.) "[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard." (People v. Watson (1981) 30 Cal.3d 290, 296-297.) Because there is rarely direct evidence of a defendant's intent, it usually must be inferred from all the circumstances of the crime and the defendant's actions. (People v. Smith (2005) 37 Cal.4th 733, 741.)
With regard to his second degree murder conviction, Miller's only assertion is that there was insufficient evidence of implied malice to support such verdict based upon his voluntary ingestion of PCP, which caused him to suffer a drug-induced psychosis that prevented him from subjectively appreciating the risks involved in his conduct. However, as already discussed in the previous section, there was no substantial evidence to show Miller actually had suffered a drug-induced psychotic episode. Rather the evidence revealed an intention on Miller's part to unlawfully kill his victim. From the facts that Miller obtained a loaded gun from the truck of his car before putting on a glove and walking up some stairs where he pointed the gun at the back of his victim's head before shooting him in the back of the neck and then again shooting the victim several more times in his torso and arm after falling forward on the ground, a jury could reasonably infer an intent to kill the victim sufficient to support express malice. Miller's intentional acts after the shooting, of running away, disposing of the gun and glove, hiding from authorities and then placing the blame on others, provides additional support for such a finding. (See Lasko, supra, 23 Cal.4th at p. 107; People v. Lashley (1991) 1 Cal.App.4th 938, 945.)
Contrary to Miller's premise that the jury had to have relied on implied malice for his second degree conviction because it had also found him guilty of attempted voluntary manslaughter and thus necessarily rejected an intent to kill theory, a second degree murder conviction based on a finding of express malice, without premeditation, is fully consistent with an attempted voluntary manslaughter conviction founded on intent to kill. Because the jury was not asked to identify on which theory either conviction was based, the second degree murder conviction may have been found on either express or implied malice.
Moreover, even without the intent to kill, the jury had before it abundant evidence about the manner of the killing, including the use of the firearm and the lack of provocation by the victim, from which it could reasonably find implied malice to support its verdict. As already noted, the trial court here properly instructed the jury on the various degrees of murder and manslaughter, including their various mental states and intents, and on Miller's defense of voluntary intoxication. The jury rejected Miller's theory that the shooting was committed while he was unconscious due to voluntary intoxication caused by his PCP ingestion. The jury was not required to believe that such intoxication prevented him from appreciating the risk posed by his intentional conduct and could have easily rejected such theory based on the totality of the evidence. In sum, ample evidence supported the jury's finding that Miller acted with express or implied malice.
DISPOSITION
WE CONCUR: NARES, J., HALLER, J.