Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA331868, Charles D. Sheldon, Judge.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Jermaine Marcus Walton appeals from the judgment entered after a jury convicted him of two counts of assault by force likely to produce great bodily injury upon a peace officer, one count of resisting an executive officer, and three counts of vandalism. Walton contends that the trial court prejudicially erred by precluding him from presenting the expert testimony of a psychiatrist as evidence to support a defense of unconsciousness. We affirm.
BACKGROUND
1. The Indictment
An indictment, dated May 6, 2008, charged Walton with two counts of assault by force likely to produce great bodily injury upon a peace officer (Pen. Code, § 245, subd. (c)), one count of resisting an executive officer (§ 69), and three counts of vandalism (§ 594, subd. (a)).
Statutory references are to the Penal Code unless otherwise specified.
Although one of the vandalism counts initially was charged as a felony, the indictment was amended, on the People’s motion, to reduce the count to a misdemeanor. As a result, all three vandalism counts were misdemeanors.
2. The Evidence Presented at Trial
a. The People’s evidence
On the morning of September 19, 2007, shortly after 10:00 a.m., a number of civilians saw Walton, who was a probation officer, running in the street on Santa Fe Avenue in Long Beach and yelling unintelligibly. Walton’s shorts fell down around his ankles and eventually off his body so that he was completely naked. Walton ran to a pickup truck and smashed his head into the windshield, breaking it. He fell to the ground, stood back up and then ran into traffic toward a car, ramming his shoulders and head into it. Still running in traffic lanes, Walton then collided with a semi-truck. Continuing to run, Walton moved from one side of the street to the other.
About this time Long Beach Police Department Lieutenant Daniel Pratt, dressed in uniform and driving a marked patrol car, was flagged down by a passing motorist who informed him that a naked man was running down the street on Santa Fe Avenue. When Lieutenant Pratt arrived at the scene, he saw Walton “on the sidewalk jumping up and down and acting very animated, ” waving his hands in the air. Walton saw Lieutenant Pratt and ran toward the police car, looking “very angry and agitated. His hands were balled into fists, and he was running at [the lieutenant] as though [the lieutenant] was the quarterback and he was the middle linebacker.” Lieutenant Pratt exited his vehicle and, when Walton got to the front of the police car, he told Walton to stop and get on the ground. Walton did not comply, instead telling the lieutenant, “‘You’re going to have to kill me.’” Lieutenant Pratt pulled out his taser gun and pointed it in Walton’s direction. “With his arms outstretched and his palms facing [the lieutenant], [Walton] said, in an angry voice... ‘shoot me.’” One civilian eyewitness heard Walton say, “‘I’m not guilty....’” Walton ran from the police car, and Lieutenant Pratt followed Walton and shot him with the taser gun, the top dart hitting him in the middle of his upper back and the bottom dart hitting him in the middle of his lower back. Although, according to Lieutenant Pratt, “[n]ormally when you hit someone with a taser [he or she] immediately drop[s] to the ground, ” Walton did not, but rather continued to run and the wires from the tasers that had hit Walton broke off from the lieutenant’s gun. Lieutenant Pratt had “a realization that [he] was in big, big trouble” and “was afraid.”
Finding his radio, Lieutenant Pratt called for help and then saw that Walton was running back at him, coming at the lieutenant as if Walton were going to hurt him. At that point, Detective Ramon Alcala, who also was dressed in uniform and driving a marked patrol car, arrived at the scene. Detective Alcala observed Walton to be “ready to fight, moaning, ... very aggressive, very amped up.” Lieutenant Pratt got Detective Alcala’s baton, as Walton was closing in on them, and then separated from the detective. Lieutenant Pratt yelled to Walton to get on the ground, but Walton did not comply. Detective Alcala fired his taser gun three times, and Lieutenant Pratt fired his taser gun once. Walton fell to the ground, but got up, charging again, “even more agitated than the first time.” Lieutenant Pratt directed Walton’s attention toward him and struck Walton in the leg with the baton so that Detective Alcala could reload his taser gun. Walton continued to charge at Lieutenant Pratt, trying to punch him in the face. Each time Walton threw a punch, Lieutenant Pratt ducked and hit him in the leg with the baton.
Detective Alcala ordered Walton to stop, but he did not, moaning, making noises, and advancing, “ready to fight” with fists clenched. The detective fired his taser gun again at Walton, but the taser did not subdue him. Instead, Walton chased Detective Alcala toward a fence, grabbed his uniform and punched him in the head and the face, knocking the detective to his knees against the fence. As Walton continued to hit Detective Alcala, Lieutenant Pratt struck Walton with the baton in the legs and the arm. Unable to stop Walton, Lieutenant Pratt swung the baton to hit Walton in the head, but Walton blocked the baton with his hands and then started chasing the lieutenant, charging at the lieutenant “with his hands up like a boxer trying to punch [the lieutenant] in the face.” Lieutenant Pratt ducked Walton’s punch, hit him in the leg with the baton, and then began running around, trying to “stall as long as [he] could until other units” arrived to help. Another taser deployed by Detective Alcala did not stop Walton. A police sergeant then arrived, got out of his vehicle and fired his taser gun at Walton. Walton fell to the ground. With the help of other officers who had arrived, Walton was handcuffed and taken into custody.
Detective Alcala was treated by paramedics at the scene and taken to the hospital, where he received sutures under the bottom eyelid of his right eye. He missed three or four days of work as a result of his injury and, as of the time of trial, the right side of his face still hurt, and he sometimes could feel a sensation toward the end of his eyelid when he touched it.
b. The defense’s evidence
Detective Maria Lopez interviewed Walton the day after his arrest. Walton’s toes were slightly swollen, with some dried blood on them, and he had at least one mark that appeared to be from a taser. He complained of neck and shoulder pain, but had no visible bruises. Walton was calm and coherent when he spoke to the detective.
Testifying in his defense, Walton stated that he was a religious man who worked as a deputy probation officer, mostly with juvenile gang members, and as a security guard. He also coached teenagers in baseball.
Before the incident on Santa Fe Avenue on September 19, 2007, Walton worked a graveyard shift from 10:00 p.m. to 7:00 a.m. When he finished work, he received a telephone call from a woman acquaintance, who asked Walton to pick her up from her house, which he did. Walton took the woman back to his apartment, arriving at 8:20 or 8:30 a.m., when she told him that she wanted a beer and a “blunt, ” which Walton understood to mean a cigar that is opened, filled with marijuana and then rewrapped. Walton said he would not take her to the liquor store so she walked to one on her own, returning with a beer and a “blunt, ” which she rolled with marijuana. Walton told the woman that he did not smoke, but at her urging took a single puff without inhaling. Walton sat with the woman watching television and listening to music for about 15 minutes.
Having second thoughts about being with the woman at his apartment and not feeling well, Walton called his girlfriend and asked her to come get him. About 20 or 30 minutes later, Walton left his apartment with the woman and told her he was taking her to school, saying, “‘I don’t want to do this.’” While driving, about 9:00 a.m., Walton did not feel well and pulled over, got out of the car, and started walking down the street. He questioned why he was with the woman and contemplated whether to take time off from work, realizing that he had not had a vacation in five years. He was not angry and did not feel violent. He asked the woman to drive, but she told him that she did not have a license. He felt stressed. He called his girlfriend again and asked her to come get him. Walton’s girlfriend told him that she was at work and could not come for him. Walton asked the woman to walk with him and remembered sitting on a bus stop. The next thing he knew, he “woke up in the hospital handcuffed to a bed.” Walton asked the nurse, “‘What just happened?’” The nurse replied, “‘You don’t know what just happened?’” And Walton said, “No, I really don’t. I don’t know what happened.”
Walton said he did not remember taking his clothes off, running in traffic, or hearing commands from or being shot with a taser gun by Lieutenant Pratt. He recalled a truck but thought that the truck had run him over. Walton did not recall seeing Lieutenant Pratt before the day the lieutenant testified at trial. Walton also did not recall seeing Detective Alcala, hitting him, or being shot with a taser gun by him. He did not remember telling the police to shoot him. Walton also could not recall his conversations in the hospital and afterward with the police, and he denied reporting that he remembered feeling paranoia and desperation while driving with the woman acquaintance before stopping his car, taking his clothes off in the street, seeing police in uniform, hearing commands, and striking one of them. He also denied telling the psychiatrist who had interviewed him on the People’s behalf, Dr. Gordon Plotkin, that he remembered running at the police, testifying that he reported to Dr. Plotkin that he did not recall anything after being run over by the truck and hitting his head on the ground. Walton did not use drugs, although he took one puff of the “blunt” that day, and he could not explain his behavior, other than to say he was stressed and tired and his grandmother, who had raised him, had passed away five or six months before the incident, which affected him tremendously. On cross-examination, Walton acknowledged that he had told Dr. Plotkin that, while he was driving, he felt guilt ridden and as though he were going to wreck his car and asked God for forgiveness, that he felt as though he were about to lose everything, that he took off his clothes at the bus stop, and that a truck ran him over and he blacked out for five seconds.
Dr. Plotkin testified that he had interviewed Walton on January 11, 2009, 14 months after the incident on Santa Fe Avenue. Based on that interview, Dr. Plotkin opined that Walton did not have a major mental disorder. Although a small amount of marijuana was detected in Walton’s blood, Dr. Plotkin believed that the marijuana had a “very minor” effect on Walton and that Walton did not suffer from a drug-induced psychotic episode or blackout when the incident occurred on Santa Fe Avenue. According to Dr. Plotkin, Walton’s “behavior was bizarre. There were lots of factors. They were all related to his personality, to the way he deals with stress, to his impulsive episodes, his history of impulsive episodes....” Dr. Plotkin believed that Walton felt guilty and was remorseful for contemplating being with a woman other than his girlfriend and said that Walton focused on how much he had worked before the incident and how tired he felt.
According to Dr. Plotkin, Walton reported details of the incident, including that “[h]e remembers being on the ground. He remembers seeing the policeman with a gun. He remembers saying to himself, ‘in the name of Jesus, ’ and then running at the police officers. He remembers asking them to shoot him. He remembers punching at them. He stepped back and again asked them to shoot him. And then he said he blacked out. ‘I don’t remember. Angels praying over me.’ He said, ‘I woke up in the hospital.’ And then he added that he remembered punching the first guy in the face.” Walton told Dr. Plotkin that he knew what he was doing when he drove his head into the vehicles and when he hit the police officer.
Dr. Plotkin reviewed the report of Dr. Ronald Markman, a psychiatrist who had interviewed Walton on behalf of the defense, and did not agree with Dr. Markman’s assessment that Walton, at the time of the events, might have had a psychotic episode related to a toxic intoxication of marijuana, which Dr. Markman opined would support an insanity plea. Dr. Plotkin found Dr. Markman’s conclusion faulty because it partially was based on Walton’s report that he was hearing voices—a report that was contrary to what Walton had told Dr. Plotkin—and the level of marijuana found in Walton’s blood was close to zero.
Walton’s mother, father, and a friend testified that Walton was not violent or aggressive and did not get in fights. Walton was well liked in his neighborhood, acted as a mentor to young people, and was “a good guy.”
3. The Jury’s Verdict and Sentencing
The jury found Walton guilty of two counts of assault by force likely to produce great bodily injury upon a peace officer, one count of resisting an executive officer and three counts of misdemeanor vandalism. The trial court suspended imposition of sentence and placed Walton on formal probation for five years.
DISCUSSION
Under section 26, “[a]ll persons are capable of committing crimes except those belonging to the following classes: [¶]... [¶] Four—Persons who committed the act charged without being conscious thereof.” As a result, “[u]nconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge. [Citations.]” (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) “‘An unconscious act within the contemplation of the Penal Code is one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional. [Citation.]’ [Citation.]” (People v. Ray (1975) 14 Cal.3d 20, 25, overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110–111 and People v. Blakeley (2000) 23 Cal.4th 82, 89–90.) “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.]” (Halvorsen, at p. 417.)
Walton contends that precluding Dr. Markman from testifying at trial constitutes reversible error because such testimony would have supported a defense of unconsciousness. We disagree.
At the Evidence Code section 402 hearing at which the trial court (Judge John D. Lord) evaluated Dr. Markman’s testimony, Dr. Markman, who had examined Walton on August 29, 2008, testified that given “the aberrancy of [Walton’s] behavior, based on his past history, it was [Dr. Markman’s] opinion that there was an acute psychotic reaction and the ideology could be attributed to either a functional event; in other words, something happening independent of anything biochemical being introduced into the body, or a biochemical event; in other words, taking something that alters an individual’s central nervous system, it alters consciousness, alters behavior pattern to the point that you have a drug induced psychotic reaction.” Without knowing the time that the blood sample was taken, Dr. Markman opined that the small amount of marijuana found in Walton’s blood was unlikely to have been the instigating factor for Walton’s conduct, but could have “facilitated some event.” According to Dr. Markman, a doctor who had examined Walton on the day of the incident reported an “‘altered level of consciousness, ’” which Dr. Markman said could mean “a reduced level of consciousness, or even unconsciousness, or a heightened level of consciousness, and bizarre, aggressive, talkative; it can go from one extreme to the other.” Dr. Markman also described a radiologist report from the day of the incident, listing the reason for an examination of Walton as an “acute loss of consciousness, ” which Dr. Markman said was a type of an altered level of consciousness. Dr. Markman believed that Walton’s conduct could be attributed to an overwhelming amount of stress in his life and that at the time of the incident he was in a psychotic state during which he was not appreciative of what he was doing. On cross-examination, Dr. Markman testified that he did not conclude that Walton was unconscious when he committed the acts in question, answering “no” to the People’s question whether he “in his report..., at any time, conclude[d] that [Walton] was unconscious when [Walton] committed these acts.” In addition, when the People asked Dr. Markman whether Walton had “told [Dr. Markman] that he remembered quite a number of details of what he did during the time of the crime, ” Dr. Markman replied, “He did, yes.” Dr. Markman also explained that Walton’s body temperature was elevated when Walton was examined after the incident and that, as his body temperature lowered and time passed, he became increasingly coherent, which is consistent with the effects of marijuana leaving his system.
Dr. Markman said a psychotic state is “a behavioral condition that is out of the normal sphere for that given individual, and to the point where it—the behavior does not reflect the normal confines of behavior within society. It can be uncontrollable activity. It can be aggressive activity. It can be activity based on misperceptions in society, such as paranoid concerns, or delusional concerns. It can be a response to hallucinatory activity, meaning hearing things ordering you to do something that no one else is hearing. And it occurs in people under given circumstances, some more often than not.”
Contrary to Walton’s argument, Dr. Markman’s testimony does not support a defense of unconsciousness. Dr. Markman specifically did not report that Walton was unconscious at the time of the incident. He did report that during his examination Walton remembered a number of details of the incident. Given this testimony, Dr. Markman’s opinion that Walton was not appreciative of what he was doing at the time of the incident, which might have supported an insanity plea (People v. Kelly (1992) 1 Cal.4th 495, 533; see § 25, subd. (b)), does not tend to establish a defense of unconsciousness.
In addition, to the extent that Dr. Markman’s opinion was based on the effect of the marijuana, it could not support a defense of unconsciousness because unconsciousness is a defense to a general intent crime, as charged here (People v. Colantuono (1994) 7 Cal.4th 206, 215–216 [assault]; People v. Rasmussen (2010) 189 Cal.App.4th 1411, 1419–1420 [resisting an executive officer]; People v. Atkins (2001) 25 Cal.4th 76, 82, 85, and People v. Campbell (1994) 23 Cal.App.4th 1488, 1493 [vandalism]), only when it is involuntary, not when it is the product of voluntary intoxication. (§ 22; see People v. Velez (1985) 175 Cal.App.3d 785, 791.)
Further, the reports from the day of the incident describing an “‘altered level of consciousness’” or an “acute loss of consciousness” were not Dr. Markman’s conclusions. As Dr. Markman explained, an “‘altered level of consciousness’” could mean anything on the spectrum from loss of consciousness to heightened consciousness. “[A]cute loss of consciousness, ” as noted in the hospital radiologist’s report as the reason for an examination of Walton, according to Dr. Markman, could have been caused by Walton’s heightened body temperature and Walton’s regaining of consciousness over time could have been due to the marijuana dissipating from his system. Nothing about these reports thus suggests that Dr. Markman should have been permitted to testify (and Walton did not attempt to introduce the reports independently).
Even assuming that Dr. Markman should have been permitted to testify in some form, any error in excluding the testimony was not prejudicial, whether harmless error is judged under the state standard for erroneous evidentiary rulings (People v. Cunningham (2001) 25 Cal.4th 926, 998–999; People v. Watson (1956) 46 Cal.2d 818, 836) or the elevated standard that would govern if the ruling had completely prevented Walton from establishing a defense (Crane v. Kentucky (1986) 476 U.S. 683, 690–691 [106 S.Ct. 2142]; Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824]). Had Dr. Markman been permitted to testify, he would have stated, as he did during the Evidence Code section 402 hearing, that he did not report that Walton was unconscious at the time of the incident and that Walton told Dr. Markman that he “remembered quite a number of details of what he did during the time of the crime.” And Walton described his conduct during the incident to Dr. Plotkin, including details such as taking off his clothes, seeing the police, asking to be shot, and striking an officer, and he also reported details of the morning to Detective Lopez and other investigating officers. This testimony demonstrates, as Dr. Markman agreed, that Walton was not unconscious at the time of the incident.
In addition, the jury was instructed under CALJIC No. 3.30 that in the crimes and allegations charged on all counts and any lesser counts “there must exist a union or joint operation of act or conduct and general criminal intent. General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, [he]... is acting with general criminal intent, even though [he]... may not know that [his]... act or conduct is unlawful.” It also was instructed under CALJIC No. 1.20 that “[t]he word ‘willfully’ when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The word ‘willfully’ does not require any intent to violate the law, or to injure another, or to acquire any advantage.” And it was instructed under CALJIC No. 1.21 that “[t]he word ‘knowingly[]’ means with knowledge of the existence of the facts in question....” Finally, as to the crime of assault, the jury was instructed under CALJIC No. 9.00 as relevant that to prove an assault a person must willfully commit an act that by its nature would probably and directly result in the application of physical force on another person; that the person committing the act must be aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; and that at the time the act was committed the person must have had the present ability to apply physical force to the person of another. The jury thus was acutely aware that it had to find that Walton acted intentionally and with respect to the assault charges willfully to be found guilty. And the jury was instructed under CALJIC No. 4.20 that voluntary intoxication, which Dr. Markman opined may have facilitated Walton’s acts, is not a defense to the charged crimes. Given the evidence and the jury instructions, excluding Dr. Markman’s proposed testimony did not prejudice Walton’s case.
DISPOSITION
The judgment is affirmed.
We concur: CHANEY, J., JOHNSON, J.