P. v. Campbell

Filed 2/4/09 P. v. Campbell CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

Defendant James William Campbell killed his girlfriends brother-in-law by striking him multiple times in the head and neck with an ax. A jury convicted defendant of first degree murder by means of a dangerous weapon. (Pen. Code, 187; 12022, subd. (b)(1).) The jury also determined defendant was sane at the time of the offense. The trial court sentenced defendant to state prison for 26 years to life.

Defendant appeals, raising the following claims of prejudicial error: (1) The courts instructions on murder improperly eliminated the differences between the degrees of murder and failed to inform the jury that defendants mental state defense may negate the elements of premeditation and deliberation; (2) defense counsel rendered ineffective assistance by (a) not requesting a pinpoint instruction based on defendants subjective delusion that the victim was molesting his own children, and (b) not requesting a limiting instruction on prior bad act evidence; (3) the trial court erred by limiting evidence showing defendant believed the victim was molesting his children; and (4) these errors created cumulative error requiring reversal.

We affirm the judgment.

FACTS

Guilt phase

1. The prosecution

At the time of the offense, defendant lived at a Stockton residence with his girlfriend, Debra; Debras father, Therman; Debras two sons, Scott and Eric; Debras sister, Pam; Pams husband, Larry (the victim); and Pam and Larrys six children, Tiffany, Katie, Larry, Andrew, Tina, and Andrea. For the sake of clarity, we refer to these family witnesses by their first names.

On the day before the killing, defendant and the victim fought each other. Defendant gave the victim a black eye.

The following day, January 5, 2003, Debra and Katie were visiting a friend who lived down the street. Pam was also away visiting with a friend. Larry was watching a football game on television in his upstairs bedroom. Therman was also watching TV in his own bedroom. Defendant was fixing the living room door. Defendant asked Andrew to get him a hammer and a hatchet. Andrew found a hammer outside and brought it to defendant, but he did not find a hatchet. Defendant went outside, found something, and picked it up.

Defendant then told Andrew and Andrews two younger sisters that he loved them. He started to cry. He hugged them, told them to play in the yard, and walked back into the house. Andrew and his sisters, however, followed defendant into the house and hid behind the living room couch.

Defendant walked upstairs into Larrys bedroom. Andrew followed him halfway up the stairs. Andrew heard his father say to defendant, What are you going to do with that, bro, chop me up? Andrew then saw defendant hit his father with a hatchet on the left side of his fathers head. He ran downstairs to get his grandfather.

Andrew and Therman went over to the stairway. Defendant was standing on the stairs; the victim was next to him, sitting down, and not moving. Defendant said, I didnt hurt your dad. Therman told Andrew and his sisters to get into the car, and they drove to pick up Debra and Katie.

When they returned, Katie jumped out of the car and ran into the house. She saw defendant in the kitchen standing over the victim, who was lying on his back in a big puddle of blood. Defendant was holding the victims legs. Katie asked defendant what he had done, and then ran outside screaming and crying, passing Debra. Debra asked what was wrong. Katie replied, He killed my dad.

Inside, defendant walked out of the kitchen and into the living room. Debra stopped him and asked, James, what have you done? Defendant replied, I did what had to be done. Defendant continued outside while Debra went into the kitchen. She squatted down, and as she shook the victim, she noticed his hands had been severed. Debra went back outside and flagged down a passing police car on routine patrol. She told the officer, My brother, hes dead, hes in the house.

The officer, California Highway Patrol Officer Mark Petricevich, stepped out of his car to speak with Debra, Katie, and defendant. Defendant had blood on his hands. He told Officer Petricevich he had tried to help the victim. He also stated he had seen the suspect run away from the house. He described the suspect as a White male with shoulder-length dark hair and blue eyes. Officer Petricevich radioed for help, but San Joaquin County sheriffs deputies were already on their way, having been dispatched to the house in response to a call that a man was chasing another man with an ax.

Upon arriving at the scene, Deputy Sheriff Richard Tellyer noticed defendant matched the description of the suspect he had been given. He and his partner drew their weapons and ordered defendant to get down on his knees, and then onto his stomach, so they could handcuff him. Defendant dropped to one knee, but refused to get down onto both knees. Deputy Tellyer attempted to put him in a wrist or arm lock, but defendant resisted, pushing backwards with his arms and yelling.

Deputy Tellyers partner, Deputy Charles Locke, tried using a taser on defendant, who was now standing, but it had no effect. The deputies continued commanding defendant to get down but he continued to refuse, yelling, I didnt do it. Deputy Locke fired the taser gun several more times, but it still had no effect on defendant. Deputy Tellyer struck defendant several times in his knee with a baton, but that also had no effect. By then, several deputies had arrived and, by using their collective body weight, successfully wrestled defendant to the ground. Defendant, though, continued to struggle. Deputy Tellyer pepper sprayed him, and that had no effect.

It eventually took six or seven peace officers to subdue defendant. They handcuffed him and placed him in a patrol car. While he was being moved, defendant, laughing, stated, I did it, and Jesus told me to do it. He yelled, I had to do it. I had to clean up the neighborhood.

While being transported, defendant intermittently made statements that were recorded. His statements included: Did you catch that son of a bitch who walked out the door? Caught him in the house. Everybody just showed up. It was crazy. I didnt do it. The only reason I got blood on my hands is [I] tried to pick him up. I ran in there. Oh my God. I tried getting him downstairs. Oh Jesus. Nobody seen shit. There wasnt nobody here except me and that guy I was trying to chase, a dude with black hair and blue eyes. I want to see my mama. Let me see. How about the times when Robert Campbell molested me? You want to hear that too? You want to hear it all?

On the way to the county hospital, defendant was having erratic mood swings. He would get angry and violent, and then he would calm down. He would clutch his fists and threaten to kill the peace officers. In the next second, he would be crying. The parties stipulated that the blood drawn from defendant on the date of his arrest was tested and found to be free of any alcohol or drugs.

Meanwhile, peace officers entering the home found the victim lying face down on the floor in the kitchen, with a lot of blood around him. His feet were lying on a black tarp. His severed right hand was on the floor next to his body; his severed left hand was inside a blanket nearby. He had large gashes on both sides of his head and on his neck. Wet blood on the floor indicated not much time had passed since the killing.

Near the body, officers found several bloody blankets and an ax. The ax handle near the head of the ax was covered with brownish blood-like stains. In the upstairs bedroom, blood was on a wall and the top of a mattress, and it stained the ceiling. It appeared the victim had been lying on the mattress with his head close to the wall when the bloodshed occurred. The lack of blood on the victims back indicated he had been laying face up when the attack occurred. There was no indication of any struggle. It also appeared the victim had been dragged down the stairs and into the kitchen.

An autopsy disclosed the victim had suffered at least two chopping blows to each side of his head and to his neck. The wounds were very deep. The ax pierced the skull and shattered it into the brain as well as chopped off portions of the brain. One of the wounds to the right side of the head went into the brain stem area, which would have caused instant death. The ultimate cause of death was [m]ultiple chop injuries consistent with an ax. The hands had been severed after the victim died.

2. The defense

Defendants defense included the testimony of a neighbor, Frank Castleman; Dr. Kent Rogerson, defendants psychiatrist; and himself.

Castleman testified that at about 1:00 or 2:00 p.m. on the day of the murder, defendant visited with him at his house for a couple of hours. Defendant was upset and crying. He told Castleman he had been molested when he was younger. He also told him he believed certain events were occurring at his home. Describing defendant at that time, Castleman said, It just wasnt him.

A short while after the visit, Castleman saw Debra come out of her house. She fell to her knees, screaming. Defendant was already outside. Castleman asked defendant if everything was all right. Defendant said it was. Then the police arrived and fought with defendant. Castleman believed the police arrived at defendants house about 15 or 20 minutes after defendant left his house.

Dr. Rogerson evaluated defendant and his records. He diagnosed defendant with bipolar disorder in some remission, post-traumatic stress disorder secondary to sexual and physical abuse as a child, and a personality disorder not otherwise specified. Defendant also had a history of methamphetamine and marijuana abuse.

Dr. Rogerson explained that bipolar disorder is a psychiatric illness where the patients mood shifts between mania and major depression. Under the manic phase, the patient is hyper, restless, and feels grandiose, as if he has special powers. He may reach a delusional belief that he is God-like. A person in a very agitated psychotic state can be dangerous. When in a depression phase, the patient has lost all joy, feels worthless and hopeless, and begins to consider suicide. A person with bipolar disorder goes back and forth between these two poles of mania and depression. A person such as defendant could experience abrupt shifts between mania and depression.

In response to a hypothetical question, Dr. Rogerson stated the condition of bipolar disorder would clearly have an effect on a persons ability to form intent. Moreover, that persons ability to form intent could be affected by certain outside traumatic stressors, such as recalling having been physically or sexually abused in the past.

The manic phase of bipolar disorder does not come and go in a minute. If it does, it is not bipolar disorder. Defendants mood did not change quickly after the homicide. Defendant had been increasingly ill leading up to the event. References in records kept by the San Joaquin County Sheriffs Office Medical Unit indicated he was recognized as being very psychologically ill on the day of the homicide and for some time afterward. While at the county jail, defendant was observed licking his own urine, sprinkling it as holy water, screaming, and yelling. These symptoms of manic behavior did not settle down for a number of weeks after beginning antipsychotic medications.

Dr. Rogerson stated a person with post-traumatic stress disorder can have a sudden onset. If something or someone precipitates a memory or recollection of an earlier trauma, the person can actually act out the trauma again or feel all of the anxiety, fear, or rage he originally felt. This could occur, for example, when a person who was sexually abused as a child unexpectedly meets the abuser several years later.

Defendant told Dr. Rogerson he felt and believed at the time of the homicide that the victim was molesting his own children. In particular, defendant felt the victim had molested the victims daughter Tiffany.

Defendant testified on his own behalf. He admitted a prior conviction for spousal abuse (Pen. Code, 273.5), and admitted serving time at Deuel Vocational Institution for violating probation. He stated he had been molested by his uncle, Robert Campbell, when he was seven or eight years old, and again when he was 13 or 14 years old. On New Years Day 2003, defendant saw his uncle Robert at a family gathering. Asked if that was a pleasant surprise, defendant said, [I]t wasnt too amusing.

Defendant said that on January 4, 2003, the day before the homicide, he was outside working on his pickup when he smelled marijuana in the air. He found Tiffany, Eric, and their friends in the living room drinking beer. He ran them out of the house, then headed up the stairs to tell the victim to come down and take care of his kids. Looking in to the upstairs bedroom, he saw the victim lying on the bed exposing himself and masturbating. The victims young daughter, Tina, then five years old, was on the bed as well. Defendant grabbed Tina, took her downstairs, and went back up. He started to fight the victim and hit him in the eye. The victim kept saying, I wasnt doing nothing, brother. I was just putting my clothes on. Defendant became emotional and said, This is what happened to me when I was a kid.

Defendant claimed his memory of the events of January 5, 2003, the day of the homicide, was sketchy. He said he remembered going back to his house after visiting with Castleman. He was in the front of the house working on a wall, and Andrew wanted to help him. He asked Andrew to go out back and get a hammer. At one point, they were both in the backyard, and defendant grabbed the ax. He intended to split some kindling for a wood-burning stove in the house.

Andrew asked defendant if someone could hunt people with an ax. Defendant said no, but that the Indians used to do it. Andrew then looked at defendant, looked up to the upstairs bedroom, pointed at it, looked back at defendant, and repeated the same gestures. Defendant asked Andrew, Has he been hurting you? Andrew nodded yes.^[1]

An overwhelming feeling came over defendant, like a hurt, anger, rage-type feeling. At that moment, he did not think; he just acted. The next thing he recalled was looking down at the victim in between the kitchen and the stairway, and he was holding the ax. His next recollection was being in the kitchen, and Pam and Debbie were screaming at him and Debbie was grabbing him. From that point he remembered being bound in a patrol car. He could not remember anything during the interim.

Defendant did not claim the things he could not remember did not occur. Im just saying, like Larrys dead, Im not saying that I didnt do it. I just dont remember all of it, what happened.^[2]

DISCUSSION

I

Jury Instructions on Murder

Defendant claims the jury instructions wrongfully precluded the jury from reaching a verdict of second degree murder. He says the instructions given by the trial court essentially amounted to a directed verdict, denying him his mental state defense and directing the jury to conclude that if he committed murder at all, he committed first degree murder. This occurred, defendant asserts, because the trial court (a) did not define malice; (b) did not inform the jury that defendants mental state defense may negate the elements of deliberation and premeditation as well as malice; (c) allegedly redacted from the instructions printed version that a decision to kill made rashly or impulsively is not deliberate and premeditated; and (d) gave a short-handed definition of second degree murder without defining malice. We conclude the court committed no prejudicial error.

A. Additional background information

The court instructed the jury that murder required a showing of specific intent. It used CALCRIM No. 3428 to define that intent as malice aforethought and to address the effect defendants mental state defense could have on the required showing of intent. The court stated: You have heard evidence that Defendant may have suffered from a mental or defective 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. Murder is the intent to kill in the mental state of malice aforethought. If the People have not met this burden, you must find the defendant not guilty of murder.^[3] (Italics added.)

The court defined the elements of murder, but it did not define express or implied malice. Using a modified version of CALCRIM No. 520, the court instructed: Defendant is charged with a murder. To prove the defendant guilty of this crime, the People must prove, one, that Defendant committed an act to cause the death of another person, and two, when Defendant acted, he had a state of mind called malice aforethought. [] Malice aforethought does not require hatred or ill will towards the victim. Its a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any period of time.^[4][5]

If the jury determined defendant committed murder, the court stated the jury must then determine whether the murder was in the first degree or the second degree. To define the two degrees, the court explained the elements of first degree murder, and then said any murder that is not first degree murder is second degree murder.

Using CALCRIM No. 521, the court stated: If you decide Defendant has committed murder, you must decide whether there is murder of the first or second degree.

You may not find the defendant guilty of first degree murder unless all of you have agreed the People have proved Defendant committed murder.

Defendant is guilty of first degree murder if the People have proved if [sic] he acted willfully, deliberately and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and knowing his consequences, decided to kill. Defendant acted with premeditation if he decide [sic] to kill before committing the act that caused the death.

The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for the deliberation and premeditation may vary from person to person according to the circumstances. A decision to kill made rationally [sic, read rashly], impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The extent - the test is not the extent of reflection, not the - the test is the extent of reflection, not the length of time.

All other murders are murders of the second degree.

The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.^[6]

The court further explained the difference between first and second degree murder on two occasions. First, while explaining the verdict forms to the jury, the court stated, The difference between first degree murder and second degree murder, you need premeditation and deliberation for first degree. The second, you dont need it. You just need the intent and malice. Second, in response to a question from the jury asking for a definition of second degree, the court wrote: Its murder with malice without premeditation and deliberation.

In his argument to the jury, the prosecutor defined express malice. The prosecutor stated: I have to prove that when that human being was killed, that the killer had a state of mind called malice aforethought, and express malice aforethought is what were talking about here, which basically means intent to kill. Defense counsel did not object to this statement.

B. Analysis

In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record. [Citations.] When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous. [Citations.] The meaning of instructions is no longer determined under a strict test of whether a reasonable juror could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a reasonable likelihood that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel. [Citations.] (People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277, italics in original.)

The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. (People v. Blair (2005) 36 Cal.4th 686, 744.) That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. (Id. at p. 745.) It also encompasses instructions on a defense that is supported by substantial evidence if the defendant is relying upon it or if it is not inconsistent with the defense theory of the case. (People v. Flannel (1979) 25 Cal.3d 668, 684-685.)

The obligation to instruct sua sponte, however, does not encompass what have come to be called pinpoint instructions. Pinpoint instructions relate particular facts to a legal issue in the case or pinpoint the crux of a defendants case, such as mistaken identification or alibi. [Citation.] They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte. (People v. Saille (1991) 54 Cal.3d 1103, 1119.)

In this case, there is no reasonable likelihood the instructions forced the jury to convict defendant of first degree murder. From the instructions given and the arguments of counsel, the jurors would have understood that this was a case of whether defendant committed murder with express malice, i.e., the specific intent to kill, and they would have understood the distinction between first and second degree murder. The jurors would also have understood they could convict on second degree murder if they did not find the elements of deliberation and premeditation true. To the extent defendant believes that additional instructions were necessary for jurors to understand the relationship of defendants mental state defense to those elements of first degree murder, he should have requested such a pinpoint instruction. (People v. Saille, supra, 54 Cal.3d at p. 1119.)

The jurors would have understood the concept of malice aforethought, and specifically express malice, because the trial court defined the concept when it instructed the jury with CALCRIM No. 3428. The court told the jury the prosecution had to prove defendant acted with the required intent or mental state. It defined the intent and mental state for murder as the intent to kill in the mental state of malice aforethought. Albeit clumsy, this definition told the jury the prosecution had to prove defendant intended to kill. This defined express malice because express malice and an intent unlawfully to kill are one and the same. (People v. Saille, supra, 54 Cal.3d at p. 1114, fn. omitted.)

Indeed, in closing argument the prosecutor acknowledged his burden to prove malice in the form of intent to kill, and he correctly labeled this malice as express malice. Defense counsel did not object.

Accordingly, the jury would have reasonably understood that to secure a murder conviction, the prosecutor had to prove defendant harbored malice aforethought, and that to establish malice aforethought, the prosecutor had to prove defendant intended to kill the victim.

The courts omission of CALCRIM No. 520s description of express and implied malice did not harm defendant because the jury was instructed on express malice and there was no evidence to support an instruction on implied malice. Striking a person in the head and neck with an ax several times under the circumstances of this case goes far beyond the type of dangerous behavior that demonstrates implied malice. Defendants actions demonstrated either intent to kill or, because of his mental state, no intent to kill nor knowledge that his act was dangerous to human life. There was no evidence of implied malice.

In any event, as part of convicting defendant of first degree murder, the jury determined that his attack on the victim was willful. The trial court defined willful as acting with the intent to kill, the very definition of express malice. (Pen. Code,  188.) Having found that defendant acted with express malice, the jurors necessarily would have made the same finding if they had been instructed with the CALCRIM No. 520 definitions of both express and implied malice.

Contrary to defendants claim, the trial courts failure to instruct on the distinction between express malice and implied malice in this instance did not eliminate the distinction between first and second degree murder or amount to a failure to instruct on a lesser included offense. Unlike in the authority cited by defendant, People v. Rogers (2006) 39 Cal.4th 826, 866-867, the jury here could have reached a verdict of second degree express malice murder under the directions given by the court. The instructions told the jurors to determine willfulness/
express malice, deliberation, and premeditation. If they found willfulness but not deliberation and premeditation, they were under instruction to convict on second degree murder.

Defendant calls the courts explanations of second degree murder short-handed, but he does not challenge their correctness. The CALCRIM instructions, following Penal Code section 189, required the jury first to determine if a murder occurred, and if so, to determine whether the murder was first degree or second degree. If the jury could not determine the murder was first degree, it became by definition second degree. The courts short explanations of second degree murder as murder without deliberation and premeditation simply stated what the jury could already deduce from the courts definition of first degree murder. This did not foreclose the jury from reaching a verdict of second degree.

The trial court committed no error when it did not relate, sua sponte, defendants mental state defense to the first degree murder elements of deliberation and premeditation. A trial court is not obligated to instruct, sua sponte, on whether a preexisting mental condition precludes a defendant from deliberating or premeditating. (People v. Ervin (2000) 22 Cal.4th 48, 91.) [S]ua sponte instructions on the actual effect of the defendants mental disease or disorder on his relevant mental state became unnecessary with the abolition of the mental disease/diminished capacity doctrine. ([Pen. Code,] 28, subd. (a).) (People v. Ervin, supra, at p. 91.)

Such an instruction is a pinpoint instruction, and it must be requested by the defendant. (People v. Saille, supra, 54 Cal.3d at p. 1117.) Here, nothing in the record indicates defendant requested the trial court to instruct the jury that his mental state defense could be applied to the elements of deliberation and premeditation. Thus, there is no error.

Defendant claims the trial court instructed on his mental state defense by means of CALCRIM No. 3428, but it did so incompletely. It informed the jurors they could consider his mental illness for the limited purpose of deciding whether he acted with malice, but it did not also inform the jurors to consider the illness when deciding if he acted with deliberation and premeditation.

Again, it was defendants burden to ask the court to expand on the instruction if needed. The trial court is not required to give such [a pinpoint] instruction on its own initiative, and if the instruction as given is adequate, the trial court is under no obligation to amplify or explain in the absence of a request that it do so. [Citations.] [Where the instruction was adequate] [citation], and because defendant did not ask the trial court to clarify or amplify it, defendant may not complain on appeal that the instruction was ambiguous or incomplete. (People v. Mayfield (1997) 14 Cal.4th 668, 778-779.)

Moreover, the courts rendition of CALCRIM No. 3428 was adequate in light of all of the other instructions the jury received, and it did not preclude the jury from reaching a verdict of second degree murder. A trial court does not commit prejudicial error when it fails to identify premeditation and deliberation as a mental state to which evidence of mental disease or defect was relevant, in cases where the trial
court . . . explained that premeditation and deliberation were mental states necessary for a conviction of first degree murder . . . . (People v. Rogers, supra, 39 Cal.4th at p. 881.)

The trial court explained the elements of premeditation and deliberation as the mental state required for a finding of first degree murder. A reasonable juror would understand that defendants mental illness, described as it was in the evidence, could have potentially impacted defendants ability to deliberate on his actions. A reasonable juror thus would have linked the mental illness defense to the mental state required for this crime, including deliberation and premeditation, and thus could have concluded the mental illness negated those elements.

The court again addressed defendants mental state defense as it applied specifically to the elements of first degree murder when the court told the jury a decision to kill made rashly, impulsively or without careful consideration was not deliberate and premeditated. This instruction accounted for defendants theory that, at most, he was guilty of second degree express malice murder for acting impulsively due to his mental illness. Defendant claims this instruction was redacted, but it does not appear to have been. The court read the instruction, defense counsel argued the instruction, and the printed instruction legibly included the language.

Expert testimony suggested defendants mental illness could make him react impulsively, to the point of not even knowing what he was doing. From this testimony, the jury could have concluded under the instructions given that defendant did not act with deliberation and premeditation when he killed the victim as a result of his mental illness, and thus could have reached a verdict of second degree murder. There is no reasonable likelihood the jury did not understand the impact of defendants mental health defense and its potential to reduce the crime to second degree murder. We thus find no prejudicial error in the courts rendition of the murder instructions.

II

Ineffective Assistance

Defendant claims his trial counsel rendered ineffective assistance by (a) not requesting a pinpoint instruction based on defendants subjective delusion that the victim was molesting his own children, and (b) not requesting a limiting instruction on prior bad act evidence. We disagree with each contention. Defendant is unable to show that, but for the omissions, there was a reasonable probability of a different outcome, one of the standards required for establishing ineffective assistance. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 697-698].)

A. Pinpoint instruction on subjective delusion

Defendant contends his trial counsel rendered ineffective assistance by not requesting a pinpoint instruction on the effect of delusion on the elements of deliberation and premeditation. He claims counsel should have asked for an instruction alerting the jurors that if they found defendant acted out of provocation or heat of passion due to a delusion the victim was molesting the victims own children, such evidence would negate the elements of premeditation and deliberation and thereby reduce the crime to second degree murder. We disagree.

1. Additional background information

At the close of evidence in the guilt phase, defense counsel sought an instruction on the lesser included offense of voluntary manslaughter. The trial court denied the request, ruling there was insufficient evidence to support the instruction. Defendant does not contest this ruling.

In his closing argument, defense counsel did not assert that defendant acted out of provocation or heat of passion as a result of a delusion. Instead, he argued defendants mental illness, and the fact that there were many people in and out of the house at the time of the killing, indicated defendant did not form the necessary mental elements of murder. Counsel argued it was defendants bipolar disorder that kept defendant from forming malice.

He also argued the circumstances of the crime indicated defendant could not have deliberated. He asserted it was unreasonable that someone would deliberate on murder with so many people around and not think about how he could accomplish the crime without being caught. Counsel argued defendant was not thinking; he was reacting. But counsel did not argue defendant was reacting to a delusion.

Before us, defendant claims the entire defense in the guilt phase was centered on his delusional perception that the victim was molesting his own children. This, coupled with a recall of defendants childhood molestations due to his recent contact with the abuser, all in conjunction with his bipolar disorder and post-traumatic stress disorder, caused a psychotic break, resulting in the victims death and negating the elements of premeditation and deliberation.

Defendant claims there was substantial evidence of delusion introduced at the guilt phase that would have entitled him to a pinpoint instruction relating provocation based on a delusion to the elements of premeditation and deliberation. Defendant told Dr. Rogerson he believed the victim had been molesting his own children. He saw Andrew nod his head when he asked if the victim had been hurting him. He felt an overwhelming feeling of rage come upon him. Also, Dr. Rogerson diagnosed defendant as being in the manic phase of bipolar disorder at the time of the murder. He explained a person who was sexually molested could experience this level of mania as well as a sudden onset of post-traumatic stress disorder when the person unexpectedly meets the abuser, as happened here.

Defendant asserts reasonably diligent counsel, relying on this evidence, would have requested a pinpoint instruction linking provocation based on his delusion that the victim was molesting his own children to the elements of premeditation and deliberation.

2. Analysis

Defendants claim of ineffective assistance fails because he has not demonstrated prejudice. Even if a pinpoint instruction on the effect of delusion had been given, it is not reasonably probable that defendant would have received a more favorable verdict.

Evidence of hallucination or delusion may be admitted to show defendant acted out of heat of passion, and it can thereby negate the first degree murder elements of deliberation and premeditation. (People v. Padilla (2002) 103 Cal.App.4th 675, 679.) However, before a pinpoint instruction on this point can be given, there must be evidence the defendant acted in the heat of passion without deliberating or premeditating because of that delusion.

Here, there was insufficient evidence that defendant acted out of heat of passion and without premeditating or deliberating so as to justify the pinpoint instruction. The issue is whether the provocation precluded the defendant from deliberating. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295.)

[A] finding of deliberation and premeditation is not negated by evidence a defendants mental condition was abnormal or his perception of reality delusional unless those conditions resulted in the failure to plan or weigh considerations for and against the proposed course of action. The mental process necessary for a finding of deliberation and premeditation is not dependent on the motivation for the act. [A first degree murderer need not have a rational motive for killing. (People v. Lunafelix (1985) 168 Cal.App.3d 97, 102.)] Nor is the necessary mental process lacking when the considerations reflected on by the defendant were the product of mental disease or defect. (People v. Stress [(1988) 205 Cal.App.3d 1259,] 1270-1271.)

Even though the defendant in Stress suffered from a paranoid delusional psychosis, the court found sufficient evidence that he committed a deliberate and premeditated killing. Stress was enveloped within a delusional crusade to expose a national conspiracy that ensured professional athletes escaped military service during the Vietnam War. At his wits end concerning how to deal with the conspiracy, Stress decided to kill his wife to gain the attention he needed to expose the plot.

Stress instructs that a delusional, psychotic system can be compatible with the premeditation and deliberation required for a first degree murder. (People v. Bobo (1990) 229 Cal.App.3d 1417, 1434-1435, italics added, bracketed material in original.) A jury can reasonably infer from the evidence that a defendant was purposefully planning and acting in the context of a delusion, and his delusional system did not preclude planning or weighing of considerations. (Id. at pp. 1435-1436.)

The evidence suggested the delusion, assuming there was one, existed well before defendant committed the homicide and did not foreclose his ability to plan his actions. Defendant accused the victim of molesting the children the day before the murder, when he caught the victim masturbating in front of his five-year-old child. Defendant chastised the victim, saying that was what had happened to him as a child. There is no doubt, based on defendants own comment, that at that moment, he believed the victim was molesting children.

Yet, with knowledge of the delusion, defendant was not immediately provoked to kill the victim. Instead, he picked up the child, took her out of the room and downstairs, then returned to the room and hit the victim. The delusion did not on this instance prevent defendant from planning his actions.

Moreover, the events surrounding the homicide indicated defendant planned and weighed his actions at that time as well, even if he did so within the context of a delusion. He went out to retrieve the ax himself; he warned the children to stay outside; he walked up the stairs and gave the victim a moment to say a nonthreatening comment; and he struck the victim more than once in the head and neck.

Even the evidence highlighted by defendant of a delusion does not demonstrate the delusion foreclosed his ability to premeditate and deliberate. He saw his childhood abuser four days before the homicide. While this may have been upsetting, there is no evidence defendant immediately acted out of heat of passion at that time due to a delusion the victim was molesting his children.

All of these circumstances indicate that even if a pinpoint instruction had been given on the effect of delusion, the verdict would likely not have been different. The evidence showed that despite the alleged delusion, defendant planned and weighed his actions in a manner that constituted premeditation and deliberation. A pinpoint instruction on delusion would not have changed the outcome.

B. Limiting instruction on prior bad act evidence

Defendant claims his trial counsel rendered ineffective assistance when he failed to object to, and request a limiting instruction against, hearsay testimony of defendants prior bad acts and incriminating statements used to impeach Dr. Rogersons expert opinion. We conclude defendant suffered no prejudice from counsels omission.

1. Additional background information

Dr. Rogerson opined in the guilt phase that defendant could not have formed intent to kill due to his mental illness and his delusion that the victim was molesting his children. On cross-examination, the prosecution sought to impeach Dr. Rogersons opinion based on his failure to consider a number of prior acts allegedly committed by defendant and reported by witnesses to peace officers.

After the second instance of these prior acts was asked of Dr. Rogerson, defense counsel objected based on relevance, and he sought a bench conference. However, the conference was not reported, and the questioning continued in this vein extensively.

Specifically, the prosecutor asked Dr. Rogerson if in reaching his opinion he had considered the following 21 statements made by witnesses concerning prior actions and statements by defendant:

(a) Pam stated defendant never told her he had a mental illness, and she knew he had faked mental retardation at the Social Security office by pretending not to know answers to questions he was asked. Dr. Rogerson had read this statement.

(b) Pam stated defendant told her he made a knife while he was in prison and hit a man for taking a piece of chicken off his plate. Dr. Rogerson had not been provided with this statement. He agreed the information would have been helpful to know in forming his opinion.

(c) Tiffany reported defendant became angry with her about six months before the crime, called her a slut and a cunt, and slapped her in the face. Dr. Rogerson had not been provided with this statement. He agreed it would have been nice to know of this statement when he was forming his opinion.

(d) Katie reported defendant in December terrorized the house, tore blades off a ceiling fan, threw a chair, damaged the living room ceiling, broke a coffee table, and he slapped Debra and slammed her into a wall. Dr. Rogerson had read this statement. While defendants actions were consistent with someone in defendants condition going off of any stimulus, Dr. Rogerson agreed it could also be consistent with someone engaged in classical spouse abuse.

(e) Katie stated defendant on one occasion broke out the windows on a couple of their cars. Dr. Rogerson had read this statement. He agreed that property destruction could be part of the domination process used by spousal abusers.

(f) Tiffany stated defendant had a bad temper, would break things when he got mad, and kicked a hole in a wall. Dr. Rogerson had read this statement.

(g) Pam, Katie and Tiffany reported defendant kicked Debra in the face with a steel-toed boot resulting in Debra requiring a steel plate in her face. Dr. Rogerson had read Katies statement, but he had not been provided with Pam or Tiffanys statement.

(h) Tiffany reported other instances of domestic violence against Debra by defendant. Dr. Rogerson had not been provided with this statement, but he thought it described what he had already learned.

(i) Eric stated the night before the homicide he saw defendant run upstairs and hit the victim in the eye while he was lying on the bed. Dr. Rogerson had not been provided with this statement but he was aware defendant had done this.

(j) Katie also reported to Debra that defendant had beat the victim up the previous day. Dr. Rogerson had not been provided with this statement, but he had read another statement by Katie where she stated she saw the victim with a black eye and heard defendant apologize for having caused it.

(k) Pam stated that the night before the homicide, after defendant had punched the victim in the eye, she heard the defendant crying and saying, Im sorry, brother, to the victim. Defendant also said, Come on, brother, its not like you got to worry about me coming up behind you and hitting you with something. Dr. Rogerson had not been provided with this statement. He was aware of some of this event from other sources, but he was not aware of defendants actual statements.

(l) Pam stated the victim told her defendant had come up to him and was upset because the victim would not help him. Defendant said he was going to [t]ax that ass and make him get up. Dr. Rogerson stated he had read something in reference to that and he was aware that defendant believed the victim was not doing anything around the house.

(m) Katie stated that when defendant got really mad at Debra, he would take it out on the victim. Dr. Rogerson had read this statement.

(n) Katie reported defendant was always talking about killing people and animals. He threatened to take her cats to the canal and step on their heads. In fact, he had taken one cat to the canal and killed it. Dr. Rogerson had read some of this statement, but he was unaware of defendants statement about killing animals. He was aware of Katies claim that defendant had killed one of her cats. Dr. Rogerson agreed this behavior could be used as a control mechanism.

(o) Katie stated defendant told her that when he was in prison, he was in control of his group, but when he got out he could not control everything. That made him mad and bitter. Dr. Rogerson had not been provided with this statement. He agreed it would have been interesting information.

(p) Katie reported defendant would try to control the victim. The victim would tell defendant he did not have to listen to him, and this angered defendant. Dr. Rogerson had not been provided with this statement.

(q) Katie stated defendant, while standing over the victims body in the kitchen, said, Death to all that oppose me. Dr. Rogerson had not been provided with this statement.

(r) Katie reported of a time when defendant slapped Pam because Tina had gotten outside. Dr. Rogerson had read this statement.

(s) Pam stated when the victim was in jail, defendant backhanded her, splitting her mouth open, because she was not watching the baby. Dr. Rogerson had not been provided with this statement.

(t) Pam reported another instance where defendant slapped her, trying to control her actions, while the victim was in jail. Dr. Rogerson had not been provided with this statement.

(u) Pam stated defendant wanted her to ask for his permission before she left the house while the victim was in jail. Dr. Rogerson had not been provided with this statement. He agreed this could be the sort of thing people who are engaged in domestic violence do to control members of the household.

In his closing argument, the prosecutor did not mention
Dr. Rogersons opinion or the prior bad act evidence introduced on Dr. Rogersons cross-examination. Defense counsel, in his argument, accused the family witnesses of lying, mentioning in particular the instance of defendant beating Debra: That didnt happen. That didnt happen, the kids, and you know it didnt because if it had, [defendant] wouldnt have been there. He would have been gone on a little parole violation . . . .

On rebuttal, the prosecutor said the jurors would receive a limiting instruction on how they could use the prior bad act evidence. The prosecutor stated: And one thing I would like to point out, and youll get an instruction on this, [defense counsel] made reference that you could tell that the [witnesses] were lying because they were talking about how Pam had gotten injured. Well, actually, what we have is those actually came from me asking the doctor, Do you remember? Youll be told everything that the doctor said that he heard from someone, including [defendant], is only offered for his diagnosis, and it doesnt mean that they actually happened for one. So all those things -- like Im not going to stand up her and try and say, Look, you can tell hes a bad man, hes a violent man because, see, remember the time he kicked Debbie in the face? Well, you dont have any actual evidence that that ever occurred one way or the other. All we know is that they told that, but so somehow he wants to tell you, even though thats false because if it had happened it would have reported. [] If any of you read anything about domestic violence, you know that thats not true . . . .

The trial court did not give a limiting instruction regarding the prior bad act evidence. There also is no evidence in the record that defense counsel ever asked for a limiting instruction.

2. Analysis

An expert may be cross-examined regarding the subject to which his testimony relates, the matter on which he bases his opinion, and the reasons for his opinion. (Evid. Code, 721, subd. (a).) Therefore, a party seeking to attack the credibility of the expert may bring to the attention of the jury material relevant to the issue on which the expert has offered an opinion of which the expert was unaware or which he did not consider. The purpose and permissible scope of impeachment of an expert is to call into question the truthfulness of the witnesss testimony. Impeachment is not general rebuttal. [Citation.] (People v. Bell (1989) 49 Cal.3d 502, 532.)

It is common practice to challenge an expert by inquiring in good faith about relevant information, including hearsay, which he may have overlooked or ignored. (People v. Montiel (1993) 5 Cal.4th 877, 924.) Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. (Id. at p. 919.)

Defense counsel did not request a limiting instruction as to the prior bad act evidence, and we perceive no explanation for why he did not. Nevertheless, counsels failure to request, or the courts omission to so instruct, sua sponte, was effectively mitigated, if not corrected, by the prosecution, when he advised the jurors during his argument that the prior bad acts were unproven and that, as such, jurors were not to use the prior bad act evidence for any purpose other than to understand the basis of Dr. Rogersons opinion. Indeed, the prosecutor said nothing about the prior bad act evidence except to advise the jury to limit its use. Under these circumstances, a request for a limiting instruction would have had no effect on the verdict. Even if the court had instructed on this point, it is not reasonably probable defendant would have received a more favorable verdict. Defendant did not suffer ineffective assistance due to counsels omission.

III

Exclusion of Evidence of Defendants State of Mind

Defendant claims the trial court committed prejudicial error when it refused to allow Frank Castleman to testify that defendant told him he believed the victim was molesting his children. Castleman testified that on the morning of the homicide, defendant visited him and, during their discussion, disclosed he had been molested as a child. Defendant was upset and crying while they talked.

Defense counsel asked Castleman if defendant had explained what was upsetting him. Castleman stated defendant told him he thought the victim was molesting his children. The trial court struck Castlemans answer, ruling it was hearsay.

Counsel argued the answer was admissible under Evidence Code section 1250 as going to defendants state of mind, and it was not being offered for the truth of the matter. The court disagreed with counsels claim that it went to defendants state of mind. As to the evidence not being offered for the truth of the matter, the court stated, If its not for the truth then its irrelevant.

Before us, the Attorney General concedes the courts
ruling was in error. [T]he testimony sought to be elicited
was not hearsay, he writes, because (1) it was proffered as circumstantial evidence of [defendants] state of mind; and
(2) was not offered for the truth of the matter asserted. We agree. (Evid. Code, 1250, subd. (a).)

The Attorney General also argues, however, that the error was not prejudicial. We agree on this point as well. The error was harmless when viewed under either standard of harmless error. Dr. Rogerson testified that defendant told him he believed at the time of the homicide that the victim was molesting his own children, and he mentioned one of the children in particular. Thus, the jury understood defendants state of mind, and Castlemans testimony would have been only cumulative. Defendant suffered no prejudice by the courts exclusion of Castlemans testimony.

IV

Cumulative Error

Defendant claims the cumulative effect of all of the alleged errors resulted in an unfair trial. We disagree. The litmus test for cumulative error is whether defendant received due process and a fair trial. [Citation.] (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) The few errors complained of here were harmless, whether considered individually or collectively. Defendant was entitled to a fair trial but not a perfect one. [Citations.] (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) 

DISPOSITION

The judgment is affirmed.

NICHOLSON , J.

We concur:

SCOTLAND , P. J.

HULL , J.

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^[1] While being interviewed by peace officers, Andrew did not mention anything about his father hurting him or about pointing at the victims window when defendant asked him if his father was hurting him. On the stand, Andrew said he did not remember speaking with defendant about the ax while they were in the backyard except to say he did not know where the ax was. Andrew also did not remember if before defendant hugged him outside in the backyard, he looked up and pointed to the upstairs. Kate and Tiffany, two of the victims three children who testified, stated their father never molested them.

^[2] Because defendant does not challenge the sanity finding, we do not discuss or refer to the evidence presented on that issue.

^[3] The printed instruction provided to the jury was unskillfully edited. Attempting to use the original, optional language provided in the form instruction but without eliminating all of the forms language and notation, the written instruction defined the required intent as the intent to kill or mental state required, e.g., malice aforethought, or knowledge that . . .>. The ellipsis was printed on the instruction.

^[4]