Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 00F02479 & 04F11052
SCOTLAND, P.J.
A jury convicted defendant Mikhael Vlasov of the first degree felony murder of Cindy Chung during the commission of an attempted carjacking, attempted kidnapping of Amado Lopez to commit robbery, attempted robbery, attempted carjacking, and assault with a firearm. The jury found true various firearm enhancements, including that defendant personally and intentionally discharged a firearm in the commission of Chung’s murder and the attempted kidnapping of Lopez.
Defendant was sentenced to state prison for life without parole for the murder of Chung, plus 25 years to life for the intentional use of a firearm in committing that offense, and a determinate term of 27 years to life for the remaining charges.
On appeal, defendant contends the trial court erred in joining the Chung and Lopez charges for trial, in refusing an instruction on the defense of duress, and in excluding expert testimony regarding traumatic bonding relevant to his duress defense. He also claims there is insufficient evidence he intentionally discharged a firearm in the murder of Chung. We shall affirm the judgment.
FACTS
Defendant was tried twice for the murder of Chung during a failed carjacking--with the first trial ending in a mistrial after the jury deadlocked, and the second trial resulting in a conviction on all counts.
At the first trial, he was tried jointly with co defendant Daniil Zhuk, who testified and tried to cast blame for the murder on defendant. In so doing, Zhuk challenged defendant to testify and tell the truth, and also accused defendant of an uncharged attempted carjacking of Amado Lopez’s car at an Albertson’s store.
The defense was defendant did not have the specific intent to commit the charged crimes, in that his limited intelligence caused him to be easily influenced by Zhuk, the true mastermind. Regarding the uncharged Lopez incident, defendant testified Zhuk told him what to do, and defendant blindly followed instructions because he felt coerced. He admitted the uncharged Lopez offense in an effort to show that he was testifying truthfully, and to demonstrate that Zhuk was the one in charge. The tactic was somewhat successful because the jury convicted Zhuk of all charges, but was unable to reach a verdict regarding defendant’s guilt on all but one charge involving Chung’s father.
The prosecution then charged defendant in case No. 04F11052 with the attempted kidnapping of Lopez to commit a robbery and with assaulting Lopez with a semiautomatic weapon. The Lopez charges were consolidated with case no. 00F02479, which charged defendant with the murder of Chung in the commission of an attempted robbery and carjacking, and with attempted carjacking and attempted robbery. A summary of the evidence presented at the second trial follows:
The Murder of Chung
On January 20, 2000, Zhuk, 14-year-old Peter P., and defendant were cruising in Zhuk’s car. Zhuk told them that he knew someone who would pay them $4,000 for a BMW or Mercedes. While driving along Interstate 5, Zhuk saw a white BMW that he decided to steal and followed the car.
Cindy Chung was driving the BMW to her father’s business to do some work for him. Chung was a bookkeeper for a construction company but occasionally helped her father with bookkeeping for his business, an automobile body shop on Croydon Way in Rancho Cordova.
Zhuk, Peter P., and defendant followed the BMW to a commercial building on Croydon Way, where they lost sight of the car. Zhuk parked nearby, gave defendant a handgun, and told him to go look for the car. Zhuk also tried to involve Peter P. in the crime, but Peter P. declined; he even told Zhuk they should not steal the BMW, to which Zhuk responded, “shut up you little guy.”
Defendant got out of the car and headed in the direction of the BMW. He went past a dumpster but did not see the car. After urinating in the waste container, he returned to Zhuk’s car and explained that he could not find the BMW. Zhuk began to drive away with Peter P. and defendant, but returned and parked in the same spot. Zhuk told defendant to “go take the car.” When defendant refused, Zhuk began “cussing [him]” and said he would kick defendant in the head and tell his friends he was “not good.” Zhuk called him a “pederaste”--which is “real bad” in Russian-- and a condom.
Defendant’s testimony from the first trial was introduced at the second trial. Defendant admitted taking the handgun and deciding to steal the BMW because Zhuk told him he would knock him in the head. He did not want Zhuk to tell his friends he was a pederaste or a condom. He gave no other reason for his failure to refuse to participate in the carjacking.
Defendant, who was armed, headed off in the same direction as before. This time, he saw an Asian man, Chung’s father, near the dumpster. Observing the white BMW backing up in the parking lot, defendant went toward the car, stopping about three feet away. As the car continued to move, defendant fired a shot through the driver’s window, killing Chung. He then ran toward Zhuk’s car and fired three shots in Mr. Chung’s direction. Defendant jumped in the car and told Zhuk and Peter P., “I didn’t get the car because she wouldn’t give it up. She stepped on the gas and I shot her.”
Two months after Chung’s death, Zhuk left a recorded message with the Sacramento County Sheriff’s Department saying that he had information about the homicide. After speaking with Zhuk, detectives contacted defendant. At first, defendant denied any knowledge of the murder but then said that Zhuk had killed Chung. Defendant eventually admitted he shot Chung, saying the devil made him do it.
The Attempted Kidnapping of Lopez
On the night of January 29, 2000, Amado Lopez was sitting in his car while on a break from his job at a grocery store. Two men, later identified as Nickolay Zaychenko and defendant, came up to the car. Zaychenko knocked on the window and asked for a cigarette. When Lopez refused, Zaychenko displayed a handgun and Lopez complied with an order to get out of the car. Zaychenko took Lopez’s cell phone and wallet while defendant pointed a knife at Lopez.
Zaychenko obtained Lopez’s car keys and told him to get in the car with Zaychenko and defendant. When Zaychenko was unable to start the car, Lopez managed to escape. He ran into the grocery store and yelled for help. Lopez and a coworker ran back out and chased the culprits, whereupon one of the carjackers fired a gun in the air. Lopez and his coworker ran back into the store.
Zhuk’s testimony from the first trial was read to the jury. He claimed he, Zaychenko, and defendant were cruising around and stopped at the grocery store to buy vodka and cigarettes. Zhuk, who stayed in the vehicle, saw defendant and Zaychenko talking to someone in the parking lot. The person ran into the store and, when the person ran back out with other people, defendant shot a gun in the air.
Defendant’s testimony from the first trial also was read to the jury. According to defendant, Zhuk instructed him and Zaychenko to rob Lopez and steal the car. Zaychenko gave defendant a gun and told him to point it at Lopez. Defendant fired the handgun as they ran from the scene, but he did not know if the discharge was accidental. The handgun was the same one he had used to kill Chung.
Defense
Defendant was born in Uzbekistan and moved to the United States when he was around 16 years old. He had an IQ between 60 and 64, with deficits in multiple areas of adaptive functioning. According to a defense expert, persons who suffer from mental retardation, like defendant, tend to agree to everything and lack the ability to predict the outcome of their actions.
Defendant, who was 18 years old when he murdered Chung, testified he associated with 17-year-old Zhuk because he wanted a friend. Defendant first met Zhuk in 1999, about five months prior to his arrest in this case. Defendant, who had never stolen before, helped Zhuk break into cars and steal stereos. He went along with Zhuk because Zhuk was defendant’s only friend. Defendant’s family tried unsuccessfully to keep him away from Zhuk.
Defendant claimed Zhuk was “mean” when defendant told him he could not find Chung’s BMW. Zhuk threatened to bash defendant’s head or smash his face if he did not steal the car, and he forced defendant to take the handgun. Denying he intended to fire the gun, defendant claimed he did not know how the gun discharged. He admitted initially lying to detectives about the Chung murder because he did not want to get into trouble.
Regarding the Lopez offenses, defendant stated it was Zhuk’s idea to steal the vehicle. Defendant denied that he was armed with a knife or that he intended to kidnap Lopez. He admitted shooting the handgun in the air as they ran back to Zhuk’s car.
During closing argument, defense counsel argued defendant’s mental retardation affected his ability to form the requisite specific intent to commit the felonies underlying Chung’s felony-murder because defendant’s impaired thinking caused him to attach himself to Zhuk, who had a dominant personality. Defendant could not say no to Zhuk, who pressured him into committing the crime, and Zhuk was able to do so because of defendant’s limited mental abilities, which prevented him from making appropriate choices.
DISCUSSION
I
Defendant contends the trial court erred in allowing a joint trial of the Chung and Lopez charges. He acknowledges that the statutory requirements for joinder were met (Pen. Code, § 954), but claims that the court should have exercised its discretion to deny consolidation in the interest of justice. (Further section references are to the Penal Code unless otherwise specified.)
To demonstrate the joinder of cases is reversible error, defendant must “‘clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried.’” (People v. Davis (1995) 10 Cal.4th 463, 508.) Several criteria assist courts in evaluating the potential prejudice from joinder, including whether (1) evidence on the crimes to be jointly tried would be cross-admissible in separate trials, (2) certain charges or evidence are unusually likely to inflame the jury against the defendant, (3) a “weak” case has been joined with a “strong” case or with another “weak” case so the “spillover” effect of aggregate evidence on several charges might alter the outcome of some or all of the charges, and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. (People v. Kraft (2000) 23 Cal.4th 978, 1030.)
Defendant does not address these criteria; rather, he argues that “there was a conflict of interest with respect to counsel’s performance on the Lopez charges at the first trial which resulted in prejudice to [defendant] by the joinder at the second trial.” According to defendant, trial counsel’s performance was deficient because he questioned defendant about the uncharged Lopez incident at the first Chung trial and elicited defendant’s admission he committed the Lopez attempted carjacking, which subjected defendant to prosecution for the Lopez charges and deprived him of a defense to the charges. Defendant believes this requires the reversal of his convictions for the Lopez offenses, as well as the exclusion of his admissions on retrial unless the admissions are used for impeachment.
In other words, defendant claims the trial court erred in joining the Lopez and Chung charges because of defense counsel’s ineffective assistance in the first trial of the Chung offenses, and this prejudiced his trial of the Lopez offense. But he does not explain how counsel’s alleged failings at the first trial have any bearing on the issue of joinder. Indeed, defendant presents no cognizable argument or authority concerning principles affecting the decision to join charges. It is insufficient to merely claim error in joining the charges without explaining why this is so. (People v. Gurule (2002) 28 Cal.4th 557, 618 [rejecting appellate claim raised without any argument or authority on the specific theory asserted]; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159 [appellate argument forfeited where not supported by analysis and citations].)
Moreover, defendant did not raise in the trial court the novel theory that he raises on appeal, nor did he bring a motion to sever on this ground. (People v. Cunningham (2001) 25 Cal.4th 926, 984; People v. Pinholster (1992) 1 Cal.4th 865, 931 [failure to formally move for severance constitutes a forfeiture of the issue on appeal].) He never claimed that the cases should not be joined due to ineffective assistance of counsel or a conflict of interest that would prejudice the trial of the Lopez charges.
Defendant did raise the alleged conflict in two motions for continuance; but that was not equivalent to a challenge to joinder. Trial counsel claimed there was a conflict of interest with respect to pursuing a motion regarding whether defendant’s testimony in the prior proceeding was knowing, voluntary, and fully advised. Counsel acknowledged that despite the existence of the conflict of interest, defendant had “expressed a very strong desire that [counsel] remain his attorney,” and the “conflict criminal director” also believed that counsel “should, nevertheless, remain on the case if at all possible.”
The record indicates that the “conflict criminal director” has a role in the appointment of an attorney, other than the public defender, to represent an indigent defendant. In the words of defendant’s counsel, the conflict criminal director had “suggested . . . that an independent lawyer might be able to litigate the conflict issue and that [defendant’s attorney] might remain on the case for all other purposes.”
The trial court granted the first continuance but denied the second. It found that defense counsel was not ineffective in the first trial; rather, counsel had to react to a sudden change of circumstances and made a valid tactical decision. In addition, the first trial judge determined that when defendant testified, he “was aware of what it was that he was doing.”
Defendant points to no evidence that he sought to exclude his prior testimony from his second trial based on a claim of ineffective assistance of defense counsel. Our review of the record discloses that he simply sought to exclude his prior testimony on the ground of “Griffin” error (Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106]), but that the motion was unsuccessful because his statements were not obtained as the result of the prosecution’s comment on his failure to testify. Rather, his prior testimony was the result of (1) codefendant Zhuk’s challenge to defendant to tell the truth, and (2) defendant’s decision to refute Zhuk’s claims that defendant was the responsible perpetrator of the Chung murder as well as other uncharged crimes.
On appeal, defendant does not challenge this ruling or show the trial court erred in admitting defendant’s prior trial testimony and admissions. This undermines his ability to establish prejudice from the joinder of the Lopez and Chung charges. Defendant’s sole claim of prejudice is that the joinder negatively affected the outcome of the Lopez charges, not the Chung charges. He argues that counsel’s performance in the first trial caused defendant’s admissions to be used against him at the trial of the Lopez charges, to defendant’s detriment. However, this claim of prejudice fails because he does not establish that severance would have prevented the introduction of his admissions in a separate trial of the Lopez charges. (People v. Coley (1997) 52 Cal.App.4th 964, 972 [appellant bears the burden of showing both error and prejudice].)
To the extent that his contention is intended as a claim of ineffective assistance of counsel, it fails on appeal.
To establish ineffective assistance of counsel, a defendant must establish that his trial attorney was professionally incompetent and that defendant suffered prejudice as a result of his attorney’s incompetence. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) Thus, defendant must show his attorney’s performance was both deficient and prejudicial in the sense that it “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington, supra, 466 U.S. at p. 686 [80 L.Ed.2d at pp. 692-693; People v. Earp (1999) 20 Cal.4th 826, 870.)
Defendant points to no deficient performance of his attorney at the second trial; he simply asserts his attorney’s performance at the first trial of the Chung charges was deficient because it produced defendant’s admission to committing the Lopez offense. It follows, he argues, that his attorney’s incompetence caused defendant’s admissions to be introduced at the second trial, which included the Lopez charges as well as the Chung charges, and that the admissions deprived him of a defense to the Lopez charges. We are not persuaded.
Reviewing courts “ ‘ “accord great deference to counsel’s tactical decisions” [citation], and . . . “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.” ’ ” (People v. Jones (2003) 29 Cal.4th 1229, 1254; accord, People v. Coffman and Marlow (2004) 34 Cal.4th 1, 86.) “‘Even where defense counsel may have “‘elicit[ed] evidence more damaging to [the defendant] than the prosecutor was able to accomplish on direct’” [citation], we have been “reluctant to second-guess counsel” [citation] where a tactical choice of questions led to the damaging testimony.’ [Citation.]” (People v. Cleveland (2004) 32 Cal.4th 704, 746.)
Testifying at the first trial, Zhuk challenged defendant to testify and to tell the truth about the Chung and Lopez incidents. Defendant was thus faced with a decision whether to testify and address Zhuk’s accusations. The decision to have defendant testify was certainly a valid tactical choice because defendant needed to refute Zhuk’s accusations in order to pursue the defense that Zhuk was the mastermind of the carjacking resulting in Chung’s murder and that defendant was merely Zhuk’s puppet. The fact that this was a reasonable tactical choice is shown by the fact that the jury in the first trial convicted defendant of only one crime, negligently discharging a gun at Chung’s father, which was a lesser offense to one of the crimes charged against defendant. Accordingly, we cannot say the decision constituted ineffective assistance of counsel, even though hindsight shows it resulted in additional criminal charges against defendant.
In any event, defendant has not pointed to, nor have we found, any case where an attorney’s deficient performance in one trial can be used to establish prejudicial ineffective assistance of counsel in a second trial on different charges.
In sum, defendant has failed to demonstrate that the trial court erred in joining the Chung and Lopez charges, or that the judgment must be reversed because of ineffective assistance of counsel.
II
Defendant asserts the trial court erred in refusing to give a requested instruction on the defense of duress (CALJIC No. 4.40). We disagree.
Duress is a defense against criminal charges only when the person charged “committed the act or made the omission charged under threats or menaces sufficient to show that [he] had reasonable cause to and did believe [his life] would be endangered if [he] refused.” (§ 26.) The defense negates the intent or capacity to commit the charged crime. (People v. Petznick (2003) 114 Cal.App.4th 663, 676.)
Although duress is not a defense to murder (People v. Anderson (2002) 28 Cal.4th 767, 780), it can provide a defense to murder on a felony-murder theory by negating the underlying felony. (Id. at p. 784.) “If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony.” (Ibid.)
The immediacy of the threat or menace is central to the duress defense, and it has an objective and subjective component. The threat or menace must be that which would cause a reasonable person to fear his life would be in immediate danger if he did not commit the crime (§ 26; CALJIC No. 4.40); and the defendant must have actually believed that his life was in immediate danger if he did not commit the crime. (§ 26; CALJIC No. 4.40.) This immediacy requirement means that a person committing a crime under duress must believe he has only the choice of imminent death or committing the requested crime, thereby depriving the person of the time to formulate what is a reasonable and viable course of conduct or to formulate criminal intent. (People v. Condley (1977) 69 Cal.App.3d 999, 1012.) Thus, threats of future harm do not diminish criminal culpability. (People v. Bacigalupo (1991) 1 Cal.4th 103, 125 [defendant’s vague and unsubstantiated claim that the Columbian Mafia had threatened to kill him and members of his family if he did not commit the charged offense did not constitute substantial evidence warranting a duress instruction], judgment vacated on other grounds by Bacigalupo v. California (1992) 506 U.S. 802 [121 L.Ed.2d 5].)
To be entitled to a duress instruction, the defendant must present substantial evidence of this defense, which is evidence sufficient to deserve the jury’s consideration, not simply any evidence, however weak it might be. (People v. Wilson (2005) 36 Cal.4th 309, 331.) A trial court may properly refuse to give the requested instruction if the defendant fails to offer evidence tending to support any element of the defense. (People v. Flannel (1979) 25 Cal.3d 668, 684, superseded by statute on another point as stated in In re Christian S. (1994) 7 Cal.4th 768, 777; see, e.g., People v. Petznick, supra, 114 Cal.App.4th at pp. 677-678.)
Here, the trial court thoroughly reviewed the evidence and found there was nothing to indicate defendant’s conduct was motivated by a fear for his life. Defendant testified that because he wanted to be with Zhuk, he kept stealing cars. Zhuk never threatened to kill defendant if he did not participate in the Chung carjacking; Zhuk threatened only to bash defendant on the head and to tell his friends that defendant was less than a man, and Zhuk called defendant a pederaste, which made him feel bad. When asked what it meant to be bashed in the head, defendant replied that Zhuk would smash his face because guys never slap each other’s faces. Although Zhuk’s threats made defendant afraid, he was afraid only a “little bit. Not too much.” The court noted Peter P., who was younger than defendant, refused Zhuk’s attempts to enlist his help in his criminal agency and nothing happened to him. Furthermore, once defendant gained possession of the sole gun, he no longer needed to fear being beaten because he had gained control over Zhuk.
Defendant does not dispute the trial court’s recitation of the evidence or claim there was any additional evidence of threats that the court failed to consider. Defendant’s appellate counsel simply seizes upon the court’s finding that Zhuk’s threat to bash defendant in the head was no longer viable once defendant gained control of the gun. In counsel’s view, defendant’s limited intelligence meant that he would not necessarily realize the threat had dissipated. This argument rings hollow because there is no evidence that defendant was mentally disabled to the point that he would not be able to understand that once he obtained possession of the sole available firearm, Zhuk was no longer a physical threat to him.
In any event, defendant overlooks that to claim duress, there must be evidence that he subjectively believed that there was an immediate threat to his life if he did not do as directed, and that this belief was objectively reasonable. There is no such evidence in the record. Defendant never testified that he feared for his life because he thought that Zhuk’s threat to bash his head meant Zhuk would kill him immediately unless he carjacked Chung’s car. Fear of receiving a beating is not sufficient to establish duress. (People v. Subielski (1985) 169 Cal.App.3d 563, 567.)
Simply stated, there was no evidence that defendant joined the carjacking plan because of an immediate fear for his life. He may have been reluctant to participate in the crimes, but this is insufficient to support a duress instruction. (People v. Petznick, supra, 114 Cal.App.4th at p. 677.) Also insufficient to establish duress is participation in order to please an authority figure. (People v. Vieira (2005) 35 Cal.4th 264, 290.) Here, the evidence demonstrates that defendant’s participation in the crimes was motivated in large part by his desire to please Zhuk and maintain their friendship. “There was no gun to his head. The suggestion that defendant’s participation was coerced by an imminent threat to his life is pure speculation. We find no error in the trial court’s refusal to give the duress instructions.” (People v. Petznick, supra, 114 Cal.App.4th at pp. 677-678.)
III
Defendant contends the trial court erred in excluding testimony from an expert regarding “traumatic bonding.”
The admission of expert testimony is subject to the requirement that it be “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) In addition, the testimony must be relevant to an issue at trial, as only relevant evidence is admissible. (Evid. Code, § 350; People v. Heard (2003) 31 Cal.4th 946, 972.) “Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘ “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.]’ [Citation.]” (People v. Scheid (1997) 16 Cal.4th 1, 13-14.) A trial court’s exercise of discretion in admitting or excluding evidence, including expert testimony, is reviewable for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1118; People v. Alvarez (1996) 14 Cal.4th 155, 201.)
At an Evidence Code section 402 hearing, Linda Barnard, who has a Ph.D. in counseling and works with trauma survivors, discussed traumatic bonding. It is not a diagnosis but a characteristic of a relationship in which one person has a position of authority or control over another person, and there is intermittent harassment, verbal abuse, or physical abuse interspersed with kindness by the controlling person. The recipient feels controlled and fearful, but simultaneously cares about the dominant person because of the intermittent kindness. He does what he is told to do, otherwise the controller might become violent or abusive. The recipient knows right from wrong but is susceptible to being controlled by the other person. A person who is less intelligent has a greater susceptibility to forming a traumatic bond and a greater desire to please the dominant person. Barnard opined that defendant was traumatically bonded with Zhuk and feared he would suffer harm if he did not follow Zhuk’s orders.
Barnard conceded she had never studied the dynamics between criminal partners, including the dynamics and techniques of control by leaders and followers in criminal partnerships. Barnard also acknowledged her testimony would not promote a duress defense; she simply was “providing information about the context in which this event occurred.” In addition, Barnard was not assessing defendant’s capacity to form a specific intent, which was a question outside her area of expertise. She typically testified about traumatic bonding in the context of domestic violence but had never “testified about it in a case exactly like this.”
Defense counsel argued Barnard’s testimony was relevant to establish that defendant was coerced into committing the Chung robbery and that he did not share Zhuk’s specific intent with respect to the felony underlying Chung’s murder or with respect to the attempted carjacking of Lopez’s car.
The trial court disagreed, ruling that Barnard’s testimony was not relevant to any issue at trial, including the defense of duress. The evidence merely dealt with defendant’s motivation, which was not relevant to specific intent. Furthermore, the court ruled, even if the evidence had some marginal relevance, its probative value was outweighed by its prejudicial effect under Evidence Code section 352.
Defendant contends the trial court should not have excluded Barnard’s testimony regarding traumatic bonding. In defendant’s view, the testimony was critical in helping the jury in determining “whether defendant actually formed the intent to steal and the other mental states in issue.” He analogizes his situation to cases involving rape accommodation syndrome or battered women’s syndrome, claiming the expert testimony was necessary to explain defendant’s actions and to help the jury understand his behavior. According to defendant, he could not establish his duress defense without Barnard’s testimony; therefore, the court’s ruling “undercut the evidentiary basis” of his “main line of defense.” The contention fails.
The problem is that Barnard’s testimony was irrelevant absent some evidence of a viable duress defense. As explained in part II, ante, defendant presented no evidence that he actually feared for his life if he did not follow Zhuk’s orders, which was a prerequisite to establishing the defense of duress. Barnard’s testimony did not, and could not, supply this missing element. For example, in cases involving what is called battered women’s syndrome, expert testimony about the syndrome is “admissible to explain how the defendant’s asserted subjective perception of a need to defend herself ‘would reasonably follow from the defendant’s experience as a battered woman’ [citation], [but] an expert is not permitted to testify as to the expert’s opinion that the defendant actually perceived that she was in danger and needed to defend herself [citation].” (People v. Erickson (1997) 57 Cal.App.4th 1391, 1400, italics omitted.)
Hence, Barnard’s testimony that traumatic bonding explained defendant’s decision to follow Zhuk’s directive to steal the cars had no relevance to the issues at trial. That defendant may have felt a non-life-threatening coercion to comply with Zhuk’s commands did not tend to establish that he acted under duress, which means it did not tend to establish that he acted without the requisite specific intent. At best, Barnard’s testimony would have helped to establish a claim of imperfect duress; but California law has rejected application of the doctrine of imperfect duress to negate the specific intent element of a crime. (People v. Bacigalupo, supra, 1 Cal.4th at p. 126, fn. 4; People v. Son (2000) 79 Cal.App.4th 224, 236-237; People v. Kearns (1997) 55 Cal.App.4th 1128, 1137; People v. King (1991) 1 Cal.App.4th 288, 297-299.)
For the reasons stated above, the trial court did not abuse its discretion in excluding Barnard’s testimony on the ground that it was not relevant to any disputed issue pertaining to the charged crimes.
IV
Lastly, defendant challenges the sufficiency of the evidence to support the section 12022.53, subdivision (d) enhancement for intentionally discharging a firearm resulting in Chung’s death. He argues the ballistics evidence showed the weapon had a light trigger pull and could be fired accidentally, which defendant claimed was what occurred. Given that the jury found him guilty of felony murder, which did not require proof that the shooting was intentional, he contends there was no solid or credible evidence to support the enhancement, only circumstantial evidence.
“Contrary to what defendant suggests, the judgment is not subject to reversal on appeal simply because the prosecution relied heavily on circumstantial evidence and because conflicting inferences on matters bearing on guilt could be drawn at trial. Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt. [Citation.] We review the entire record in the light most favorable to the judgment and affirm the convictions as long as a rational trier of fact could have found guilt based on the evidence and inferences reasonably drawn therefrom. [Citation.] Such is the case here.” (People v. Millwee (1998) 18 Cal.4th 96, 132.)
Defendant admitted he had used the gun on two to four occasions prior to the murder and had fired it into the river. Consequently, he was familiar with the weapon and the degree of force necessary to pull the trigger. In addition, the evidence indicated that to fire a shot, the slide had to be racked back so a cartridge could be discharged, the safety had to be off, and the degree of force necessary to squeeze the trigger was between two and one-quarter or two and one-half pounds (the equivalent of a quart of milk). After the shooting, Zhuk asked defendant if he had shot the driver. Defendant replied, “yes,” and said that he had fired two or three shots into the car. He stated, “I didn’t get the car because she wouldn’t give it up. She stepped on the gas and I shot her.”
This is substantial evidence supporting the jury’s finding that defendant intentionally shot Chung, rather than accidentally shooting her.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., BUTZ, J.