Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA260255, Robert J. Perry, Judge. Reversed in part, affirmed in part.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
INTRODUCTION
Appellant Christopher Alex Reinoso challenges his second degree murder conviction on the ground the trial court erred by excluding expert psychological testimony regarding his mental defects and disorders and by responding to a jury question regarding appellant’s “mental instability” in a manner that precluded the jury from considering the effect of his mental defects and disorders with respect to the element of implied malice. We conclude the trial court prejudicially erred by completely excluding the expert testimony.
BACKGROUND AND PROCEDURAL HISTORY
Appellant took a van from a business, and drove it rapidly and erratically in traffic. He collided with an older model car and did not stop. He then tailgated an SUV, which he struck when it turned into a parking lot. Appellant again failed to stop. Less than a mile away, he drove down the middle of a residential street and struck a car driven by Yolanda Hernandez. Hernandez, who was about eight months pregnant, suffered extremely serious injuries and her fetus died as a result of the separation of the placenta from her uterus. Blood drawn from appellant almost four hours after the accident showed an alcohol level of 0.29 percent. Appellant had been convicted of driving under the influence twice in 2001 and once in 2002. Prior to the date of the crimes, he had attended counseling sessions addressing the dangers of driving under the influence.
At the start of trial, appellant pled nolo contendere to grand theft auto and unlawfully taking or driving a vehicle. A jury convicted appellant of second degree murder, driving under the influence causing injury and with a blood alcohol level in excess of 0.08 percent, misdemeanor hit and run driving, and driving with a suspended license. The court sentenced appellant to prison for 23 years to life.
DISCUSSION
Prior to trial, appellant filed a written motion to introduce expert testimony by Dr. Michael Perrotti, Ph.D. regarding his mental defects and disorders. The offer of proof in the written motion stated that Perrotti would testify
“that the defendant suffers from a severe case of Attention Deficit Hyperactivity disorder which caused him to be unable to focus and pay attention in the alcohol classes he was ordered to attend for his prior DUI conviction. He therefore did not learn the dangers of drinking and driving from the alcohol education that he received. This evidence is relevant to rebut the prosecution’s argument . . . that he learned from these classes, and therefore knew the dangers of drinking and driving.
“In addition, Dr. Perrotti will testify that the defendant’s frontal lobe brain disorder and ADHD caused the defendant to be unable to project himself into the future situations or think about the consequences of his behavior. And indeed, the defendant did not think about the possibility of getting into a car, drunk, and harming someone on the date of the incident in this case. This evidence is offered to show that he did not act with a ‘conscious disregard’ of the risk to human life when he drove drunk on the date of the incident. This evidence is also relevant to explain why Mr. Reinoso did not learn from his prior DUI convictions. This would rebut the prosecutor’s argument that the defendant knew the risks of drinking and driving due to his prior convictions.
“In addition, the defendant has suffered many head injuries which caused him to have short term memory impairment, and difficulty learning, acquiring, and recalling information. This impairment caused him to not be able to learn, retain or recall information taught in the alcohol education classes he attended, which is relevant to rebut the prosecution’s argument that he knew about the dangers of drinking and driving from these classes.
“Moreover, Dr. Perrotti will testify that the defendant was unable to understand, or appreciate the risks of his behavior on the date of the incident due to his mental retardation.”
The trial court addressed this motion after the jury had been empanelled. Defense counsel summarized the offer of proof in the written motion, and added that Perrotti would testify that appellant suffered from paranoid psychosis and bipolar disorder, that caused “similar problems with interfering with judgment, reason, attention, organization, planning.”
The court refused to permit Perrotti to testify. It explained that the charge of second degree murder based upon implied malice was a general intent crime, and Penal Code section 28 limited the introduction of mental defect and disorder evidence to cases in which a specific intent crime was charged. In addition, the court viewed the proffered expert testimony as evidence of a diminished capacity to form intent, which was barred by Penal Code section 28. Appellant contends the trial court erred in completely precluding Perrotti from testifying.
Penal Code section 28 provides, in pertinent part, as follows:
“(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.”
Penal Code section 29 provides that “In the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.”
Penal Code section 28 thus precludes the consideration of “mental disease, defect, or disorder as evidence of a defendant’s capacity to form a requisite criminal intent, but it did not preclude jury consideration of mental condition in deciding whether a defendant actually formed the requisite criminal intent.” (People v. Williams (1997) 16 Cal.4th 635, 677.) “Sections 28 and 29 permit introduction of evidence of mental illness when relevant to whether a defendant actually formed a mental state that is an element of a charged offense, but do not permit an expert to offer an opinion on whether a defendant had the mental capacity to form a specific mental state or whether the defendant actually harbored such a mental state.” (People v. Coddington (2000) 23 Cal.4th 529, 582, fns. omitted, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046.)
The distinction between capacity and actuality evidence is often a fine one that is difficult to discern. In People v. Nunn (1996) 50 Cal.App.4th 1357, the appellate court concluded that Penal Code sections 28 and 29 “allow the presentation of detailed expert testimony relevant to whether a defendant harbored a required mental state or intent at the time he acted.” (Id. at p. 1365.) The court went on to conclude that “it was permissible for Dr. Lipson to opine that appellant, because of his history of psychological trauma, tended to overreact to stress and apprehension. It was permissible for him to testify such condition could result in appellant acting impulsively under certain particular circumstances. Dr. Lipson could have evaluated the psychological setting of appellant’s claimed encounter with the men at the fence and could have offered an opinion concerning whether that encounter was the type that could result in an impulsive reaction from one with appellant’s mental condition. What the doctor could not do, and what the defense proposed he do here, was to conclude that appellant had acted impulsively, that is, without the intent to kill, that is, without express malice aforethought. The court acted properly in excluding Dr. Lipson’s opinion that appellant fired his weapon impulsively.” (Ibid.)
In People v. Reyes (1997) 52 Cal.App.4th 975 (Reyes), the defendant was charged with receiving stolen property. He sought to introduce expert testimony regarding his mental disorders and ingestion of controlled substances relevant to establishing that he did not know the property was stolen. During an evidentiary hearing outside the presence of the jury, the psychologist testified that “Reyes had a variety of mental disorders, including schizophrenia and ‘a paranoid, antisocial, and borderline style of personality disorder.’ Further, Reyes was ‘seriously disturbed emotionally in terms of his basic functioning,’ ‘showed deficits in his cognitive realm that might be identified as dementia or difficulty in basic cognitive functioning,’ and had a ‘serious, enduring history of polysubstance dependence.’ ” (Id. at p. 981.) The psychologist also testified that “such a person ‘could be functioning in a manner that was highly disorganized, distracted from reality, could be manifesting issues of delusion or hallucination, and at times severe disruption in the manner in which [he] . . . [made] decisions about how [he] did things.’ It would be possible for such a person to lack knowledge of his acts.” (Ibid.) The trial court precluded the psychologist from testifying on the ground the proposed testimony constituted evidence of diminished capacity. (Ibid.) The appellate court concluded the trial court prejudicially erred in doing so, as the proposed testimony was admissible. (Id. at p. 984.)
Penal Code section 28 thus permits a qualified expert to testify that a defendant suffers from a particular mental defect, disorder, or disease and to describe and explain the symptoms and effects of the condition, including the types of behavior or mental processes that can be expected from people suffering from the particular condition or conditions, and the actual effects of the condition or conditions on the defendant. The consequences of the condition must, of course, be relevant to “whether a defendant harbored a required mental state or intent at the time he acted.” (People v. Nunn, supra, 50 Cal.App.4th at p. 1365.) In some cases, the distinction between permissible diminished actuality evidence and impermissible diminished capacity evidence may lie primarily in careful phrasing of questions and responses.
The mental state in issue in the present case was an element of implied malice: that appellant knew his conduct in driving the van while he was intoxicated endangered human life, and he consciously disregarded that risk. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 106-107; CALJIC No. 8.31.) Knowledge of the hazards of driving while intoxicated, perhaps as a result of prior arrests and convictions for driving while intoxicated and exposure to educational programs regarding the dangers of driving under the influence, often forms a key aspect of the prosecution’s proof of implied malice in drunk driving murder convictions. (People v. Autry (1995) 37 Cal.App.4th 351, 359; People v. Talamantes (1992) 11 Cal.App.4th 968, 973.) The proposed testimony of Perrotti was relevant to attempt to refute both an inference that appellant’s prior convictions and alcohol education classes or counseling sessions necessarily invested him with knowledge of the threat to human life he posed while driving under the influence and an inference that he acted with conscious disregard of the risk he would create by driving under the influence.
The prosecution presented no evidence that appellant attended classes, as opposed to group and private counseling sessions through the East Los Angeles Alcohol Council. Witness Napoleon Castro denied that appellant attended any classes.
Although Perrotti’s proposed testimony would require care in the phrasing of questions and answers to navigate successfully between Penal Code section 28’s prohibition on diminished capacity testimony and Penal Code section 29’s prohibition on opinions on the ultimate mental state elements, we conclude that the trial court erred in completely excluding his testimony. He should have been permitted to testify to an opinion that appellant suffered from the various mental defects and disorders specified in the offers of proof. He should also have been permitted to describe and explain the symptoms and effects of these conditions, including the types of behavior or mental processes that can be expected from people suffering from the particular conditions, and the actual effects of the condition on appellant. If the court perceived that particular questions or responses violated the prohibitions in Penal Code sections 28 and 29, the court could limit the particular testimony. However, the court’s complete exclusion of the testimony was error.
The court’s alternate rationale for exclusion, that second degree murder based on implied malice was a general intent crime and therefore outside the scope of Penal Code section 28, is also incorrect. In People v. Whitfield (1994) 7 Cal.4th 437 (Whitfield), the California Supreme Court held that although the elements of knowledge of the danger to, and conscious disregard of human life do not literally fit the traditional definition of specific intent, they are so closely akin to specific intent that second degree murder based on implied malice should be considered a specific intent crime for purposes of the admission of evidence of intoxication where a specific intent crime is charged, as then provided in Penal Code section 22. (Id. at p. 450.) Although the Legislature promptly responded to Whitfield by amending Penal Code section 22 to specifically exclude intoxication evidence where the charge is based upon implied malice, the rationale of Whitfield with respect to the equivalence of implied malice to specific intent remains sound. (Reyes, supra, 52 Cal.App.4th at pp. 984-985 & fn. 6.) Accordingly, the charge against appellant falls within the scope of Penal Code section 28’s provision for the admission of evidence of mental disease, defect, or disorder “when a specific intent crime is charged.”
As a result of the court’s complete exclusion of Perrotti’s testimony, the jury had no expert testimony regarding appellant’s several mental defects and disorders, their symptoms, or their effects on his mental processes. Although appellant testified that he was bipolar and hyperactive, had hallucinations, had been on various medications most of his life, had difficulty focusing on a single subject, did not remember his prior driving under the influence convictions, remembered very little from the alcohol education sessions, and had difficulty paying attention in those sessions, his testimony was no substitute for expert testimony. “ ‘Mental illness [or mental defect] is a medical diagnosis . . . .’ [Citation.] Expert medical testimony is necessary to establish a defendant suffered from a mental disease, mental defect, or mental disorder because jurors cannot make such a determination from common experience. [Citation.]” People v. Moore (2002) 96 Cal.App.4th 1105, 1116-1117.) Moreover, appellant’s testimony did little or nothing to relate his mental defects and disorders to the requisite mental states for implied malice. Perrotti’s testimony also would have lent substantial credibility to appellant’s claims, as the jury may have concluded appellant was fabricating or exaggerating his problems or speculating regarding his mental disorders. For example, without testimony regarding appellant’s cognitive disorder, head injuries, frontal lobe brain disorder, and attention deficit hyperactivity disorder, the jury may simply have rejected as incredible appellant’s testimony that he did not remember his prior convictions or the content of the counseling sessions in which he had participated. In this regard, it is noteworthy that, as far as can be discerned from the reporter’s transcript, appellant was responsive and coherent while testifying. His testimony therefore did not apparently substantiate the degree of impairment to which Perrotti would purportedly testify. The exclusion of the expert testimony thus deprived the defense of credibility, weight, and the necessary correlation to the applicable mental states. Accordingly, it is reasonably probable appellant would have obtained a more favorable result on the second degree murder charge if the trial court had not erred by excluding Perrotti’s testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.) We therefore reverse appellant’s conviction on that count. In light of this disposition, we need not address appellant’s remaining contention regarding the court’s response to the jury’s question about the effect of mental instability upon implied malice.
The court did not permit appellant to testify about whether he had ever had a head injury.
DISPOSITION
Appellant’s second degree murder conviction is reversed. In all other respects, the judgment is affirmed.
We concur: RUBIN, J., FLIER, J.