Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct.No. FMB008137 Bryan Foster, Judge.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Gil Gonzalez, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Robert Louis Thomann appeals from judgment entered following jury convictions for making a criminal threat (Pen. Code, § 422; count 1) and three counts of misdemeanor vandalism (§ 594, subd. (2)(b)(A); counts 2, 3, and 4). Defendant waived his right to a jury trial and admitted the special allegations as to count 1, including two prior strike convictions (§ 667, subds. (b)–(i)); two prior serious felony convictions (§ 667, subd. (a)); and four prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to 37 years to life.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the court erred in rejecting Judicial Council of California Criminal Jury Instruction (2007-2008), CALCRIM No. 3428 (Mental Impairment: Defense to Specific Intent or Mental State). He also argues the court erred in excluding lay witness testimony on his mental condition, and there was cumulative error requiring reversal of count 1. Defendant further asserts that count 4 must be reversed because it is premised on his admission, which was coerced and the fruit of an illegal entry. We reject defendant’s contentions and affirm the judgment.
1. Facts
Count 4
While Cynthia Thompson and her boyfriend were watching television in Thompson’s apartment around 7:30 p.m. on January 27, 2006, defendant kicked Thompson’s front door several times. When Thompson and her boyfriend heard five or six loud noises at the front door, they opened the door and noticed the front screen door was bent and appeared to be kicked in. Defendant was standing about 10 feet away with his hands on his waist and did not say anything. Thompson’s neighbor, William Ellis, who lived in the apartment between Thompson’s and defendant’s apartments, was standing behind defendant. Thompson closed the front door and called the police.
Ellis testified that at the time of the incident, he was returning from the market and saw defendant kicking Thompson’s apartment door. Defendant yelled “Come on out. I am tired of this stuff. You owe me an explanation. You better get out here right now or else. . . . [¶] . . . [¶] Fucking bitch, open the door. If you don’t, I’m going to kill you and the son of a bitch in there.”
Ellis yelled to defendant, “What the hell do you think you’re doing?” Defendant turned to Ellis and said, “Shut up. You’re next.” Ellis saw defendant holding a knife and Thompson’s front door screen was kicked in. Ellis went inside his apartment and called the police.
At approximately 7:40 p.m., Deputy Sheriff Morning arrived at Thompson’s apartment. He noticed Thompson’s damaged screen door and saw defendant inside his apartment watching television. Defendant ignored Morning’s attempts to contact him. Defendant remained inside his apartment watching television, even after Morning knocked on defendant’s door, banged on his window, and turned off defendant’s power at the apartment’s main breaker.
Morning left to handle other calls and then returned an hour and a half later. Defendant had turned the electricity back on and was watching television. Morning again knocked on defendant’s door and, when defendant did not respond, Morning once again turned off defendant’s power. When defendant went outside to turn the power back on, Morning approached defendant and told him they needed to discuss the incident that had occurred that evening.
Morning asked if they could go inside defendant’s apartment to discuss the matter. According to Morning, defendant consented and the two went inside. While discussing the incident, defendant said that he had been trying to get Thompson to come outside and talk to him because defendant believed Thompson’s boyfriend was not treating her right and she was neglecting her friendship with defendant. Defendant admitted kicking Thompson’s door but denied having any weapons.
Count 3
On February 10, 2006, while Frank Lockman was visiting his friend, Journey Laird, at Laird’s hair salon, Lockman heard a thump and looked outside. He saw someone’s leg kicking Lockman’s Mercedes-Benz. Lockman ran outside and saw a big dent in his car’s left rear wheel well. Laird also saw the person, later identified as defendant, kick Lockman’s car. She ran outside, chased defendant, and yelled at him to come back. She was unable to catch up with him. Neither Lockman nor Laird saw defendant’s face but Laird noticed he was wearing blue jeans and a white T-shirt.
Deputy Moon arrived within two minutes. On the way, she stopped defendant, who fit the description provided by Laird and Lockman. Defendant told Moon he had gotten upset at the Rock and Recovery Center and punched a wall as he was leaving. Defendant denied damaging anything but agreed to go with Moon to look at Lockman’s damaged car. Moon drove defendant in her patrol car to Lockman’s Mercedes.
Lockman saw defendant arrive in the patrol car. Defendant was wearing the same clothing as the person Lockman had seen kicking his Mercedes. After Moon interviewed Lockman and Laird, she arrested defendant, handcuffed him, and placed defendant in the patrol car. Defendant started kicking the back seat and banging his head. Defendant said he was mad because he needed to go to the hospital and did not want to go to jail. Moon told him that throwing a fit would not get him out of going to jail.
Counts 1 and 2
In early 2006, defendant started exhibiting inappropriate behavior toward Linda Lou McDonald, a mental health worker and houseworker specialist at the Pacific Clinic Santa Fe Social Club (the Club). On one occasion, when visiting the Club, defendant had asked to speak to McDonald privately and then told her he wanted to make love to her. McDonald told defendant his request was inappropriate because he knew she was married. In January or February, defendant gave McDonald a letter containing lines from various songs, indicating he was infatuated with McDonald. Defendant continued to tell McDonald he loved her.
McDonald noticed defendant had started exhibiting threatening behavior toward other Club members, causing other members to fear him. In mid February 2006, the Club notified defendant he was suspended from the Club for 90 days due to his violent behavior toward Club members and staff. When McDonald told defendant of his suspension on February 12, 2006, defendant cried, hit himself on the head, and then left the Club.
Three days later, while McDonald and a client, Georgia Boniface, were at a bus stop near the Club, they saw defendant walking to the Club. Club staff member, Jonathon Biscamp, who was a large man, told defendant he could not go to the Club because he had been suspended. Defendant responded that a Club supervisor told defendant he could go to the Club if the supervisor was present. Defendant then walked toward the Rock and Recovery Center, turned around, and then started walking toward McDonald and Georgia. McDonald testified that defendant looked angry and displayed a large knife handle, which was protruding from his pants pocket. Defendant did not remove the knife from his pocket. He came within two feet of McDonald and Georgia. Biscamp came up to defendant and told him to leave. Defendant did so without saying anything. McDonald reported the incident to the police.
When McDonald arrived at work 10 days later on February 25, she saw some boxes stacked in the parking lot. She initially thought there was a bomb but then thought it was a joke and did not report it. A little later, after McDonald went inside the Club, she heard a blast and thought a bomb had gone off. She got under her desk. When she looked out from under her desk, she saw defendant entering the Club’s front door, which appeared to have been damaged.
Defendant walked to within six to eight feet of McDonald and said, “You’re dead,” “I’m going to kill you.” McDonald tried without success to call 911. She thought she was going to die. McDonald told defendant, “I have the sheriff on the phone and if you don’t hurry up and leave, they are going to shoot you.” Even though the sheriff was not on the phone, she hoped to scare off defendant. When she told defendant this, he had a vacant stare, which changed to a frightened look, and he left without saying anything. McDonald called 911 again and reported the incident.
Shortly thereafter, the police and some of McDonald’s coworkers arrived. McDonald noticed part of the door jam had been ripped out. McDonald was shaking and crying.
Deputy Sheriff Delgado responded to McDonald’s 911 call. As he was driving to the Club, he saw defendant walking nearby. Defendant appeared to be talking to others but no one was there. Delgado stopped and asked defendant what had happened at the Club. Defendant denied having been at the Club. Delgado placed defendant in the patrol car and proceeded to the Club to investigate the matter further. After interviewing McDonald, Delgado arrested defendant.
While in jail, defendant told his father during a recorded telephone conversation that he had been arrested for kicking in McDonald’s door. He said he did it because he was mad and had “an anger problem.”
Defendant testified that he was supposed to be taking medication but had stopped taking it. When he took it, he was normal but, when he was not taking it, he heard voices that drove him crazy.
Defendant admitted kicking Thompson’s door, but claimed he did it because voices told him to. Defendant also admitted kicking Lockman’s car after getting mad during a meeting at the Rock and Recovery Center. Defendant struck a wall at the center with his fist and then kicked Lockman’s car. Defendant also admitted kicking in the door at the Club because he was not taking his medication and voices told him to do it. He believed McDonald was not there when he did it. He claimed he left the Club afterwards because the alarm went off when he kicked the door.
Defendant further claimed he wrote the love letter to McDonald due to voices in his head. As to the bus stop incident on February 15, defendant denied threatening McDonald or having any weapons.
Defendant admitted he bragged to people in his apartment complex that the police “really can’t do much against [him]” because he always tells them he is crazy or hears voices. Defendant also admitted he bragged about manipulating the legal system by doing this and stated that he understood “the idea of manipulating the legal system to [his] advantage by claiming that [he] may have a mental condition or hearing voices.”
After a court-appointed psychologist evaluated defendant, the court conducted a mental competency hearing. The psychologist concluded defendant had a mental disorder but was competent to stand trial. The court accordingly found defendant competent.
2. CALCRIM No. 3428
Defendant contends the trial court committed prejudicial error by refusing to give CALCRIM No. 3428 (Mental Impairment: Defense to Specific Intent or Mental State). We disagree.
During the trial, defense counsel requested CALCRIM No. 3428, arguing the pinpoint instruction was appropriate because count 1, making a criminal threat (§ 422), was a specific intent crime and defense counsel anticipated lay witness testimony indicating that defendant appeared mentally unstable at the time of the offense.
Judicial Council form instruction, CALCRIM No. 3428, which is the equivalent of CALJIC No. 3.32, states in relevant part: “You have heard evidence that the defendant may have suffered from a mental (disease[,]/[or] defect[,]/[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 [or failed to act] with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with the required intent or mental state, specifically: _______ <insert specific intent or mental state required, e.g., ‘malice aforethought,’ ‘the intent to permanently deprive the owner of his or her property,’ or ‘knowledge that . . .’>. If the People have not met this burden, you must find the defendant not guilty of <_______ <insert name of alleged offense>. . . . ” (CALCRIM No. 3428 (Fall 2007 Ed.).)
CALJIC No. 3.32 states: “You have received evidence regarding a [mental disease] [mental defect] [or] [mental disorder] of the defendant __________ at the time of the commission of the crime charged [namely, _______] [in Count[s] _______][.] [or a lesser crime thereto, namely _______]. You should consider this evidence solely for the purpose of determining whether the defendant __________ actually formed [the required specific intent,] [premeditated, deliberated] [or] [harbored malice aforethought] which is an element of the crime charged [in Count[s] _______], namely, _______[.] [or the lesser crime[s] of _______].”
The trial court permitted defense counsel to argue, based on lay witness evidence of defendant’s mental state, that defendant did not have the requisite criminal intent at the time of the crime, but the court rejected CALCRIM No. 3428 because the instruction required expert testimony providing a diagnosis that defendant had a mental disease or defect at the time of the offense. Assuming such expert testimony would not be provided, as acknowledged by defense counsel, the court concluded the instruction was inappropriate.
On appeal defendant argues expert testimony that defendant had a mental disease, disorder or defect was not necessary since there was sufficient lay witness testimony establishing this. Such evidence included defendant’s testimony that, if he did not take his medications, he would hear voices and do what the voices told him to do. He testified he did not take his medication during the months of November, December, and January because his girlfriend told him not to. Defendant claimed he was not taking his medications at the time of the charged offenses and committed the crimes because he heard voices and obeyed them. He would not have committed the offenses if he had been on his medication.
Additional testimony by other lay witnesses concerning defendant’s mental state included testimony by Deputy Delgado that, when he approached defendant near the Club, defendant appeared normal but was talking to people who were not there. During a recorded 911 phone call, Linda McDonald told the 911 operator that defendant was supposed to be on medication but was not. McDonald testified that, at the time of the Club incident, defendant had the same “vacant” look he had had for several months and his appearance and behavior had declined over the past couple months. Georgia Boniface stated during a recorded statement that, when defendant approached her and McDonald at the bus stop near the Club, defendant did not say anything but Boniface thought he looked “crazy.”
CALCRIM No. 3428 is in the nature of a pinpoint instruction that is required to be given only on request where substantial evidence supports the defense theory. (People v. Ervin (2000) 22 Cal.4th 48, 91, [referring to CALJIC No. 3.32, the equivalent of CALCRIM No. 3428]; In re Christian S. (1994) 7 Cal.4th 768, 783.) “‘Mental illness [or mental defect] is a medical diagnosis . . . .’ (People v. Kelly (1992) 1 Cal.4th 495, 540, italics added.) 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 (Moore).)
Here, as the court held in Moore, supra, 96 Cal.App.4th 1105 , when no such expert medical testimony is presented, there is no evidentiary or legal basis for the trial court to instruct with CALCRIM No. 3428. (Moore, supra, at p. 1117.) Defendant argues Moore is factually distinguishable. Nevertheless, the general principle stated in Moore,that expert medical testimony that a defendant has a mental disease, defect, or disorder is required in order to give CALCRIM No. 3428, is applicable.
We also reject defendant’s proposition that cases involving instruction on intoxication are analogous and thus support the proposition that lay witness testimony is sufficient to support a CALCRIM No. 3428 instruction.
The trial court properly rejected CALCRIM No. 3428 because there was insufficient evidence to support the instruction.
3. Exclusion of Evidence of Defendant’s Mental Condition
Defendant contends the trial court erred in precluding him from introducing evidence establishing that he suffered from mental illness.
The trial court has broad discretion in determining whether evidence is relevant and in assessing whether its prejudicial effect outweighs its probative value. (People v. Horning (2004) 34 Cal.4th 871, 901.) Here, we see no abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.)
The trial court granted the prosecution’s motion in limine to exclude evidence of defendant’s psychological condition, other than evidence of his demeanor and behavior on the day of the offenses. The court added that defense counsel could mention in closing argument defendant’s mental state at the time of the offenses but could not discuss his general psychological condition since evidence of this was inadmissible due to there being no expert testimony on his mental state. The trial court also explained that lay witness testimony as to whether defendant had a mental disease, disorder or illness was inadmissible because it was irrelevant.
Under section 28, “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.” (§ 28, subd. (a).) Such evidence required expert testimony. As noted in Moore, supra, 96 Cal.App.4th at pages 1116-1117, in the absence of expert testimony on defendant’s mental disease, disorder or illness, lay witness testimony concerning his mental condition was inadmissible.
Under section 28, “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.” (§ 28, subd. (a).)
Thus, under section 28, subdivision (a), only evidence of defendant’s actual mental state when he committed the offenses was admissible to show whether he had specific intent to commit the offenses. Evidence of his mental condition to show he did not have the capacity to form such intent was inadmissible. The trial court appropriately limited evidence to testimony of defendant’s demeanor and behavior at the scene of the offenses, on the day of the offenses, since all other evidence concerning defendant’s mental condition lacked foundation and/or was irrelevant.
Defendant complains the court precluded law enforcement officers from testifying that defendant made post-arrest statements that he wanted to commit suicide and appeared to be hearing voices. The trial court excluded such testimony by officers as out-of-court statements made by the defendant. The court concluded that testimony of such statements would have to be elicited from the defendant himself. In other words, the court appropriately excluded it as inadmissible hearsay. (Evid. Code, § 1200.) Even if the court erred in excluding this evidence, it was not prejudicial error since there was ample evidence that defendant was acting strangely around the time of the offenses. (People v. Watson (1956) 46 Cal.2d 818, 835-836.)
Defendant further complains that the trial court excluded evidence as to the nature of the Club and Pacific Clinic, and the records maintained there, including records containing a list of defendant’s medications. Defense counsel made an offer of proof that McDonald would testify that she catalogued defendant’s four prescriptions he should have been taking and catalogued the reasons for those prescriptions. But McDonald was not a licensed physician. She worked at the Club as a mental health worker. She did not have medical expertise in prescribing medication and was not qualified to testify regarding defendant’s medications.
Again, there being no expert testifying to defendant’s psychological condition at the time of the offenses or the purpose and effect of the medications, such evidence lacked foundation and was irrelevant. The court permitted testimony that defendant was not taking his medication at the time of the offenses but sustained the prosecution’s objection to McDonald testifying concerning defendant’s medications on the grounds the type of medications defendant was or was not taking was not relevant and would be excluded, unless there was an offer of proof that such evidence was being used to show the victim had reason to fear defendant. There being no offer of proof, the court excluded the evidence, noting that the evidence had a “high probability of confusing the issues.”
There was no abuse of discretion in excluding the evidence. Without expert testimony as to the ramifications of defendant not taking his medication and what his mental condition was at the time of the offenses, lay witness testimony and evidence as to the nature of the Club, the records maintained there, and a list of defendant’s medications was irrelevant, lacked foundation, and risked being misleading and confusing the jury.
Furthermore, as to the nature of the Club, the name indicated it was a social club and clinic, and the general nature of the business was apparent from McDonald’s testimony that she worked there as a mental health worker. She also testified people from the community visited the Club voluntarily. Any further description of the nature of the Club was unnecessary and irrelevant.
The trial court did not abuse its discretion in excluding testimony and limiting evidence to observations of defendant’s behavior on the day of the offenses.
4. Admissibility of Defendant’s Statement Admitting Count 4
Defendant contends the trial court should have excluded his admission that he committed count 4 as fruit of an illegal entry. The prosecution argues defendant forfeited this objection by not raising it in the trial court. We conclude defendant did not forfeit the issue. On the merits, we conclude there was no error in allowing evidence of the admission.
On January 27, 2006, defendant admitted to Deputy Morning that he had kicked Cynthia Thompson’s front door. Defendant was accordingly charged and convicted of committing misdemeanor vandalism (count 4).
In defendant’s trial brief, defendant moved to “[e]xclude defendant [sic] statement of January 27, 2006 (Cynthia Thompson incident). Fruit of unlawful entry. Penal Code section 1538.5. Wong Sun v. U.S. (1963) 371 U.S. 471. Voluntariness. Evidence Code section[s] 402 and 352.”
During an Evidence Code section 402 hearing (402 hearing) on defendant’s motion to exclude his admission, Morning testified that after receiving a report concerning the vandalism, he attempted to contact defendant at defendant’s apartment. Morning saw defendant inside his apartment. When Morning knocked on the door and windows, defendant would not respond.
Morning left and a little later returned and banged on the doors and windows again. After defendant did not respond, Morning turned off the power at the main breaker. When defendant went out to restore the power, Morning and Deputy Niles approached defendant, patted him down for weapons, and followed him into his apartment.
Morning acknowledged during the 402 hearing that there was no search warrant or exigent circumstances requiring an emergency entry. Morning also acknowledged he did not state in his report that defendant consented to the officers entering his apartment.
Morning, however, testified at the 402 hearing that defendant consented but Morning forgot to state this in his report. Morning said he asked defendant if he and Niles could discuss the matter with defendant inside defendant’s apartment. Defendant said they could and turned around and walked toward his apartment. The officers followed him inside defendant’s apartment and began asking defendant what had occurred earlier that evening. Defendant was cooperative with the officers during the visit.
Following Morning’s testimony, the trial court ruled the officers’ entry was consensual and therefore their entry did not constitute a Fourth Amendment violation. In turn, defendant’s statements made to the officers in his apartment, including his admission to committing the count 4 offense, were admissible.
When reviewing the trial court’s ruling on a motion to suppress under section 1538.5, “[w]e defer to the trial court’s factual findings where supported by substantial evidence, but we must exercise our independent judgment to determine whether, on the facts found, the search and seizure was reasonable under the Fourth Amendment standards of reasonableness.” (People v. Avila (1997) 58 Cal.App.4th 1069, 1073-1074, citing People v. Leyba (1981) 29 Cal.3d 591, 596-597; see also People v. Lawler (1973) 9 Cal.3d 156, 160.)
“‘When the People seek to justify a search on the ground that consent was given, they have the burden of proving . . . that the consent was lawful, was not a mere submission to authority, and was not inextricably bound up with unlawful conduct.’” (People v. Lawler, supra, 9 Cal.3d at p. 163, quoting People v. Johnson (1968) 68 Cal.2d 629, 632.) Consent to search is a factual matter, and this court will uphold the trial court’s determination if supported by substantial evidence. (People v. Martino (1985) 166 Cal.App.3d 777, 791.)
In the instant case, defendant challenges the trial court’s finding of consent. We conclude there was sufficient evidence supporting such finding, and thus accept the trial court’s credibility findings and uphold the denial of defendant’s motion to suppress. Officer Morning’s testimony that defendant consented to Morning and Nile’s entry into defendant’s house supported such a finding and there was no evidence of coercion or duress.
Even though initially Morning turned off defendant’s power in an attempt to provoke defendant into responding to Morning’s attempts to contact defendant, there was no evidence of coercion, deception, or duress when defendant consented to the officers entering his home. Defendant was not in custody at the time. He was free to go inside his home and tell the officers that they could not enter.
5. Disposition
The judgment is affirmed.
We concur: Hollenhorst, Acting P. J., Richli, J.