Opinion
C083437
04-30-2018
THE PEOPLE, Plaintiff and Respondent, v. BRIAN WEISSINGER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM040560)
A jury convicted defendant Brian Weissinger of voluntary manslaughter, and the trial court sentenced him to 11 years in state prison. Defendant now contends the trial court erred in instructing the jury on the limited use of mental disability evidence. But because he did not object in the trial court, his contention is forfeited. We will affirm the judgment.
BACKGROUND
When defendant was in college, his fall from a fifth-story dorm room led to a traumatic brain injury and other injuries to his legs and hip. He walked with a cane or used a wheelchair or motorized scooter. His mother was his caregiver, looking after his needs and managing his finances. But defendant did not get along with his mother and did not like the way she controlled his money.
One day defendant went on his scooter to the bank and tried to cash a check for $150. The check was from an account in the mother's name and made out to defendant, but the amount appeared to have been altered. The teller informed defendant there were insufficient funds to cover the check. Defendant got upset and left the bank.
When people came to the mother's residence, defendant answered the door and said his mother was resting or did not want to be disturbed. But the mother was eventually found lying on the floor of her kitchen next to defendant's cane. She died from strangulation. Rings were missing from her hand. Defendant was found next door, taking a bunch of pills in a bathtub. He had his mother's rings, watches, credit cards, and the registration for her car. His DNA was found in scrapings taken from the mother's fingernails, and she was a major contributor to blood found on defendant's jacket.
A police detective interviewed defendant that night. At first defendant looked up at the sky and was nonresponsive. But then defendant indicated he was fine and spoke to the detective about the recent events as well as his drug addiction.
Defendant later testified that he had been molested. He began using alcohol, marijuana, and methamphetamine when he was 13, and had regular panic attacks after his fall from the dorm room in college. He sometimes took too much pain medication, causing him to run out before the end of the month. He would then resort to street drugs. Defendant admitted altering the check he tried to cash.
A defense expert testified that defendant's accident in college caused diminished mental capacity, increased anxiety, memory loss, personality problems, and seizures, and he also sustained a moderate head injury on the night of his mother's death, consistent with being hit on the head with a telephone or cooking pan.
The jury convicted defendant of voluntary manslaughter. (Pen. Code, § 192.) The trial court sentenced him to 11 years in state prison.
DISCUSSION
Defendant contends the trial court erred in instructing the jury on the limited use of mental disability evidence. We conclude his contention is forfeited.
Defense counsel asked the trial court to instruct with CALCRIM Nos. 3425, 3428, and 3429, and asked that CALCRIM No. 3428 be modified. The trial court did instruct the jury with CALCRIM Nos. 3425, 3428, and 3429. Defendant did not object to the instructions as given by the trial court.
The trial court instructed the jury with CALCRIM No. 3428 as follows:
"You have heard evidence that the defendant may have suffered from a mental disease, 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 with the intent and mental state required for that crime.
"The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent and mental state, specifically, an intent to kill, malice aforethought, and premeditation and deliberation. If the People have not met this burden, you must find the defendant not guilty of murder." The language "an intent to kill, malice aforethought, and premeditation and deliberation" was included in the instruction at defense counsel's request.
Nevertheless, defendant now contends the limitations in CALCRIM No. 3428 as given by the trial court were improper. He claims it was limited to murder even though evidence of defendant's mental disability was also relevant to voluntary manslaughter; it did not permit consideration of whether his false statements were knowingly false and therefore evidence of consciousness of guilt; and it prevented consideration of whether his belief in the need to defend himself was reasonable. Defendant argues the instruction should have been modified to address these concerns and the failure to do so was prejudicial error.
However, "failure to object to instructional error forfeits the objection on appeal unless the defendant's substantial rights are affected. [Citations.] 'Substantial rights' are equated with errors resulting in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. [Citation.]" (People v. Mitchell (2008) 164 Cal.App.4th 442, 465.) The purpose of the forfeiture rule is to "encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.) "In requiring an objection at trial, the forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error. [Citation.]" (People v. Kennedy (2005) 36 Cal.4th 595, 612, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.)
In People v. McGehee (2016) 246 Cal.App.4th 1190, this court held that a claim of error based on instructing with CALCRIM No. 3428 was forfeited because the defendant did not object in the trial court and the error did not affect his substantial rights. (McGehee, at p. 1194.) As in this case, the defendant in McGehee killed his mother and the trial court instructed with both CALCRIM No. 362 (on consciousness of guilt) and CALCRIM No. 3428 (on the limited use of mental disability evidence). (McGehee, at p. 1194.) And as in this case, the defendant in McGehee argued that instructing with an unmodified version of CALCRIM No. 3428 prevented the jury from considering whether the defendant's false statements were knowingly false and thus evidence of consciousness of guilt. (McGehee, at p. 1204.) This court held that the jury could reasonably infer consciousness of guilt from the defendant's efforts to keep his sister from discovering their deceased mother. (Id. at p. 1206.)
Here, defendant made false statements regarding his mother's status to more than one person and engaged in behavior consistent with consciousness of guilt when he prevented visitors from entering the mother's residence and then left the scene and went next door. (See People v. Bradford (1997) 14 Cal.4th 1005, 1054-1055.) Because it is not reasonably likely that modifying CALCRIM No. 3428 would lead to a different result regarding consciousness of guilt, his substantial rights are not affected and his argument regarding consciousness of guilt is forfeited.
Regarding the omission of voluntary manslaughter in the instruction, the omission was harmless given the overwhelming evidence in this case. Among other things, there was evidence that defendant strangled his mother, that he had a motive to do it, that he took his mother's valuable possessions, and that he tried to keep others from finding the body. Although the CALCRIM No. 3428 instruction should have referenced voluntary manslaughter as well as murder, the error was harmless given the strong evidence in this case.
The same applies to defendant's argument regarding self-defense. While the instruction should have been modified to allow the jury to consider his mental condition in the context of imperfect self-defense (People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1408-1409), the error was harmless given the overwhelming evidence of strangulation, motive, acquisition of valuable possessions and consciousness of guilt.
Because the errors were harmless, defendant's substantial rights are not affected and his claims are forfeited.
Defendant asserted for the first time in his reply brief that trial counsel's failure to object to the instruction was ineffective assistance of counsel. Defendant's failure to raise ineffective assistance until his reply brief forfeits the contention on appeal. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.) It is also without merit. Our finding that the asserted errors were all harmless precludes the finding of prejudice necessary for a claim of ineffective assistance of counsel. (People v. Maury (2003) 30 Cal.4th 342, 394.)
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
HOCH, J.