P. v. Erickson

Filed 2/6/08 P. v. Erickson CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Jan Erickson appeals his conviction by jury trial of second degree murder with the use of deadly weapons (Pen. Code,  187, 12022, subd. (b)(1))^[1]and mayhem ( 205). The jury found him not guilty of torture ( 206).^[2] He contends the trial court erroneously instructed the jury on implied malice and defense counsel was ineffective in failing to request a jury instruction on voluntary intoxication. We reject the contentions and affirm.^[3]

Background

On the night of October 10, 2004, 26-year-old defendant killed his 65-year-old father, Stephen C. Erickson.^[4] The cause of death was multiple traumatic sharp force and blunt force injuries. In the course of the attack, the victim was stabbed 38 times in various parts of his body and his scrotum, testicles and a portion of skin from his penis were removed. The killing occurred in Room 5 of the Graywood Hotel (hotel) in San Francisco, where defendant lived with the victim.

Alexis Wilson, a resident of the hotel, said that sometimes when defendant was upset, he would kick and bang on the victims door and ask to be let in. If the victim would not answer the door, defendant would pull the fire alarm. On occasion, Wilson heard defendant and the victim arguing inside Room 5. On several occasions, Wilson heard defendant swearing at and asking the victim for money.

At about 3:00 p.m. on October 10, 2004, Wilson saw defendant standing outside the hotel, circling a street sign pole and looking up at the hotel building and up and down the street. Defendant appeared to have a lot of energy . . . like he drank [12] pots of coffee. At about 11:30 p.m. or 11:45 p.m., Wilson heard a man screaming for help. Wilson and another neighbor summoned the manager, who knocked on the door to Room 5 and asked if anyone needed help. Wilson heard a voice inside Room 5 say, Help me, help me. The police and an ambulance were summoned. Thereafter, Wilson saw the police lead defendant out of Room 5. Defendants hands were bloody and he was handcuffed. Wilson saw defendant stare at the hotel manager in a frightening manner as if to warn her not to say anything.

San Francisco Police Officer Michael Rivera knocked on the door to Room 5, and, when he received no response, entered with a passkey. He saw the victim lying face up and naked on the floor. Defendant was crouched down next to the victim facing the victims head. Defendant stood up, showed Rivera his empty hands and said, I had to do it. Dont shoot. Its over. Officer Rivera grabbed defendant and pulled him out of the room. When Rivera approached the victim, in addition to the aforementioned injuries, he saw a pair of scissors sticking out of the victims left eye, which the victim removed. A meat cleaver was laying on the victims abdomen. The victim was dead upon arrival to the hospital. A search of Room 5 turned up two broken knife handles, two broken knife blades, a bloody hammer, a blood-stained towel, and a glass pipe for smoking some sort of contraband.

Defendants Police Interview

At about 4:15 a.m. on October 11, 2004, following defendants arrest, San Francisco Police Officer Herman Jones was present when a phlebotomist attempted to take a blood sample from defendant. Just as the blood began to be drawn from defendants vein, he attempted to attack the phlebotomist by grabbing at her face and the blood draw was not completed.

At about 5:00 a.m., defendant waived his Miranda rights(Miranda v. Arizona (1966) 384 U.S. 436) and his police interview was videotaped. The videotape was played for the jury. Defendant stated: Its . . . its a nightmare. You dont want to know. . . . [] Okay. I used a pair of scissors, two pair of knives and a butcher knife. . . . [] I started stabbing him in the chest while he was sleeping over the blanket. . . . [] And then I poked his eyes out with a knife. Then I stabbed him with the scissors in the heart. . . . [] And then I sliced his nuts off with a butcher knife. I ended it with a scissors stab. . . . [] All the while . . . in his heart. In his left side and his right side. I think I nailed his heart. But I dont want to think about it, its a nightmare. Defendant said he did not know what his motive was. When the police officer said defendant was obviously not happy with his father, defendant responded, Well, thats what started it. It wasnt happy for myself. But it wasnt him. . . . [] But. . . it might be, I dont know.

Defendant said he and the victim were living together in Room 5 as creepy as it sounds and the victim hates my guts. He also said, [W]hat I did is wrong but . . . the dynamics . . . I know what I know, I know what I feel about it. When the police asked defendant why it happened, defendant responded, You think it was right to do that to somebody? Defendant repeatedly asked the officers if the victim was dead and after the officers answered affirmatively, defendant said he did not believe them. Defendant said, I . . . either way, like, I was going to Hawaii or I was going to do this. Its the same thing. Whatever I did here I would have done in Hawaii but my father just happened to be like the victim and Im not saying I was going to make someone in Hawaii a victim Im just saying . . . hes not a victim. And . . . Im the victim but not really like. . . . I know what I did and . . . I know what Im in for. I mean, I dont even know what Im in for but I dont mind. . . [I]ts just killer instinct, you know. . . . I just do it. And I dont like doing it but I did it or something that I think close to it.

Defendant said that shortly before the killing he and the victim were talking about death and dying in specific cultures and the victim was saying things that defendant did not like. And then all of a sudden . . . I did it. . . . [] [I]t wasnt premeditated. I just wanted to die. . . . [] [I]t was just like I needed to do this. . . . [] It was just release. Defendant explained that he picked up a knife and it broke so he had to grab another one. He also said the victim was screaming help while defendant removed his testicles.

Defendant said he had smoked crack on the morning of the killing. He said he uses crack for several months and then stops using for several months. Defendant eventually described the attack and stabbing of the victim in detail.

The Defense

Defense forensic psychiatrist Jeffrey Gould interviewed defendant, and defendants family and friends. He noted that defendant was described as popular, friendly, kind and sociable in high school, and two years later was seen eating out of garbage cans, unkempt, often bloody and shoeless and speaking incoherently. Gould said such a change in behavior could be caused by drug use or mental illness, and noted that in the hospital, defendant was diagnosed with psychosis NOS [not otherwise specified]. Gould said there were factors in defendants case not characteristic of psychotic illness. Defendants rapid response to antipsychotic medication was more indicative of drug-induced psychosis. Gould opined that based on defendants drug screen the day of the killing, defendant was not a heavy, chronic cocaine user at the time of the killing, but conceded the drug screen did not rule out the possibility that defendant ingested a large quantity of cocaine on the day of the killing. Dr. Gould noted several incidents which suggested that defendant was faking mental illness. One occasion he claimed to be psychotic when seeking Social Security payments. On another occasion he claimed to have schizophrenia when seeking better jail housing. He also told a psychiatrist in connection with this case that he was schizophrenic although he did not appear to have such symptoms. Ultimately, Gould opined that defendant suffers from psychotic disorder not otherwise specified and cocaine abuse, and at the time of the killing suffered from both psychotic and substance abuse disorders. Gould disagreed with the diagnosis of personality disorder with schizotypal and antisocial features by the prosecutions expert, Dr. Missett, because it did not adequately explain all of defendants symptoms, particularly the fairly abrupt shift from being well-liked and successful to being dysfunctional.

Defense neuropsychologist Myla Young interviewed and tested defendant and concluded he had a brain dysfunction that significantly inhibited his ability to function in the world. She opined that defendant suffered periods of psychosis and his brain functioned in a manner consistent with persons suffering from major psychiatric disorders, such as depression and paranoia. Young disagreed with the opinion by the prosecution neuropsychologist, Dr. Lynch, whose records she reviewed, that defendant was malingering. On cross-examination, Young said that defendant did not have a cocaine dependency, even if he had used cocaine.

Defendants sister, Ava Erickson (Ava), testified that in 2001 or 2002, defendant seemed pretty normal, but in the spring of 2004 he seemed troubled, talked in circles and did not make much sense. She heard he was using crack cocaine and methamphetamine, sometimes with his parents. At some point, the victim told Ava that he and defendant fought frequently, usually over defendants requests for money.

Defendants mother, Anne-Marie Erickson (Anne-Marie) testified she was using alcohol and drugs regularly by the time defendant was in high school. On two or three occasions she and defendant used methamphetamine together. She said defendant felt that the victim was very critical of him and was upset that the victim called him a fag and made homophobic comments about him. Anne-Marie also said defendant was reasonably coherent when not binging on drugs.

Prosecution Rebuttal

Prosecution forensic and addiction psychiatrist James Missett interviewed defendant, who told Missett he had used cocaine almost daily throughout the fall of 2004. Defendant told Missett that he and the victim had spent the day of the killing arguing about his desire for more support from the victim. Defendant said he bought cocaine a couple of times on the day of the killing, the last time at 8:00 p.m., and about an hour later killed the victim. Missett opined that defendants anger and rage toward the victim at the time of the killing was the result of cocaine dependence. Missett also believed that a parent-child relational problem contributed to the killing. Missett found no evidence that defendant was psychotic on the day of the killing. Instead, he opined that defendant had considerable anger issues with the victim, which, fueled by cocaine, had an explosive [e]ffect.

Closing Argument

The thrust of the prosecutions argument was that at the time of the killing defendant had an intent to kill the victim and the killing resulted from defendants anger fueled by his cocaine use. Consequently, the prosecutor argued in favor of a first degree murder conviction. Defense counsel argued that defendant did not have an intent to kill the victim and that at the time of the killing he was in a psychotic mental state. Consequently, defense counsel argued in favor of an involuntary manslaughter conviction.

Discussion

I. The Trial Court Properly Instructed The Jury On Implied Malice

Defendant contends the court erroneously instructed the jury on implied malice pursuant to CALCRIM No. 520 because the instruction was not supported by the evidence and the theory of implied malice was not argued by the prosecution. The instruction given stated: The defendant is charged in Count One with murder. To prove the defendant is guilty of this crime, the People must prove that, one, the defendant committed an act that caused the death of another person; and two, when the defendant acted, he had a state of mind called malice aforethought. [] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [] The defendant acted with express malice if he unlawfully intended to kill. The defendant acted with implied malice if, one, he intentionally committed an act. Two, the natural consequences of the act were dangerous to human life. Three, at the time he acted, he knew his act was dangerous to human life. And four, he deliberately acted with conscious disregard for human life. [] Malice aforethought does not require hatred or ill will toward the victim. It is 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 particular period of time.

The court also instructed the jury regarding first and second degree murder (CALCRIM No. 521) and the lesser included offense of involuntary manslaughter. (CALCRIM No. 580). In addition, the court instructed pursuant to CALCRIM No. 200, Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.

The trial court is required to instruct the jury on the points of law applicable to the case. [Citation.] No particular form is required as long as the instructions are complete and correctly state the law. (People v. Tatman (1993) 20 Cal.App.4th 1, 10.) Instructions must be read together and understood in the context in which they were presented to the jury. (Ibid.) Whether the jury has been correctly instructed depends on the entire charge of the court. (Ibid.) An erroneous instruction requires reversal only when it appears that the error was likely to have misled the jury. (Id. at pp. 10-11.)

In this case, defendant was charged with murder pursuant to section 187. We preliminarily review some of the basic homicide concepts. The elements of murder are (1) an unlawful killing of a human being or fetus, (2) committed with malice aforethought. ( 187, subd. (a).) [M]alice may be express or implied. ( 188.) Malice is express when there is specific intent unlawfully to kill. (People v. Bobo (1990) 229 Cal.App.3d 1417, 1442.) Malice is implied [ ] when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. (People v. Cook (2006) 39 Cal.4th 566, 596.) Manslaughter is the unlawful killing of a human being without malice. ( 192.) A defendant lacks malice and is guilty of voluntary manslaughter either when he (1) intends to kill and acts in a sudden quarrel or heat of passion, or kills in unreasonable self-defense; or (2) killed with conscious disregard for life but no intent to kill. (People v. Parras (2007) 152 Cal.App.4th 219, 223-224.) Manslaughter is involuntary when a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life. (See  192, subd. (b); CALCRIM No. 580.)

Defendant appears to argue there was no evidence that he did not intend to kill the victim, but merely acted with conscious disregard for the likelihood that the horrific acts he performed were likely to result in [the victims] death. He notes that the prosecutor did not mention implied malice in his closing argument. Defendant asserts, [t]his was a case of murder with express malice or it was not murder at all.

The parties agree that the dispute in this case regards defendants mental state at the time of the killing. Neither defendants statement to the police nor any of the witness testimony unequivocally established defendants intent to kill, i.e., express malice at the time of the killing. Similarly, the evidence presented did not preclude a determination of implied malice, that is defendant did not intend to kill the victim and instead intentionally, deliberately and with conscious disregard for life, committed acts the natural consequences of which were dangerous to life. As argued by the People, the evidence presented supports defendants second degree murder conviction under either an express or implied theory of malice. Consequently, the court did not err in instructing the jury on implied malice.

II. Ineffective Assistance of Counsel

Defendant contends his defense counsel committed ineffective assistance of counsel in failing to request an instruction pursuant to CALCRIM No. 625 that voluntary intoxication could negate the specific intent required for express malice.^[5] He contends that had a voluntary intoxication instruction been given, defense counsel could have argued that defendant lacked specific intent since cocaine abuse fueled the killing, and it is reasonably probable that the jury would have convicted him of involuntary manslaughter rather than murder.

An appellant claiming ineffective assistance of counsel has the burden of establishing: (1) counsels performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216, 218 (Ledesma).)

In determining whether counsels performance was deficient, we exercise deferential scrutiny. [Citations.] The appellant must affirmatively show counsels deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. [Citations.] (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1148.) [W]here the record shows that counsels omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. (People v. Pope (1979) 23 Cal.3d 412, 425.)

To establish prejudice, [t]he defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland, supra, at p. 694.) In establishing prejudice, the appellant must carry his burden of proving prejudice as a demonstrable reality, not simply speculation as to the effect of the errors or omissions of counsel. (People v. Williams (1988) 44 Cal.3d 883, 937.)

After both sides rested and the jury was instructed by the court, the parties and the court memorialized for the record their prior discussion regarding jury instructions. The People argue, and we agree, that the following colloquy from the jury instruction discussion establishes that defense counsels decision not to request the CALCRIM No. 625 voluntary intoxication instruction was the result of counsels informed tactical choice:

[The Prosecutor]: [A]t one point I think the defense was, near the end of the trial for the first time, asking for a voluntary intoxication instruction and then upon further research and in discussions with the court, . . . withdrew that request based on the case of People v. Martin (2000) 78 Cal.App.4th 1107 for the reason that involuntary [sic] intoxication as an instruction is not admissible on the issue of implied malice aforethought, which is one of the bases of this case as it stands before the jury. [] So I didnt want the absence of voluntary intoxication, if that becomes an issue later, to be without some foundation. I believe I have correctly summarized this area.

[Defense Counsel]: Right. For the last year and a half that I have been handling this case, it was my intent to not rely on involuntary [sic] intoxication because of what I believed was an inability to use that as a defense under the circumstances because of the implied malice. [] Somewhere toward the end of the trialI am just going to say this on the recordone of my colleagues suggested that that was incorrect. And in an abundance of caution, I suggested to the court that I might have to bring it up, and then reversed my direction again and indicated that it would not be appropriate.

Section 22^[6]sets forth the general principle that a criminal act is not rendered less criminal because a person commits the act in a state of voluntary intoxication. While evidence of voluntary intoxication may not negate the capacity to form any mental state for the crimes charged, it is admissible as to whether the defendant actually formed a required specific intent. And, as to a charge of murder, voluntary intoxication evidence is admissible as to whether the defendant premeditated, and deliberated, or harbored express malice aforethought. (People v. Timms (2007) 151 Cal.App.4th 1292, 1296-1297.) However, voluntary intoxication is inapplicable to a murder charge based on the theory of implied malice. (People v. Martin, supra, 78 Cal.App.4th 1107, 1114-1115; accord, Timms, supra, at p. 1300.) The CALCRIM No. 625 voluntary intoxication instruction is a pinpoint instruction which must be given on request where sufficient evidence supports it. (People v. Saille (1991) 54 Cal.3d 1103, 1120.) Because evidence of voluntary intoxication is inapplicable to implied malice, the CALCRIM No. 625 instruction is inapplicable to cases where the murder charge is exclusively based on a theory of implied malice. (Related Issues, CALCRIM No. 625 (Fall 2007 ed.) pp. 364-365.)

As we noted previously, the thrust of the defense was that as a result of defendants mental illness, he did not form an intent to kill and therefore did not commit murder, and at most, should be convicted of involuntary manslaughter. The prosecutor, and not defense counsel, focused on defendants cocaine abuse, fueled by anger toward the victim in arguing that defendant had an intent to kill and should be convicted of murder. Defense counsel may have reasonably determined that it was more advantageous for defendant to forgo the voluntary intoxication instruction because it highlighted the prosecutions theory of the case. Because defense counsels tactical choice regarding jury instructions was reasonable and rational, it does not support a claim of ineffective assistance of counsel.

Disposition

The matter is remanded to the trial court with directions to order the California Department of Corrections to correct the abstract of judgment as noted in footnote 3 ante. The judgment is otherwise affirmed.

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

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^[1] All undesignated section references are to the Penal Code.

^[2] He was sentenced to 16 years to life in state prison. The court also imposed a sentence of life with the possiblity of parole on the mayhem count, but stayed that sentence pursuant to section 654.

^[3] We note that the abstract of judgment improperly states that appellant was convicted of first degree murder.

^[4] The victim was pronounced dead in the early morning of October 11, 2004.

^[5] CALCRIM No. 625 provides, in relevant part:

You may consider evidence, if any, of the defendants voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill[,] [or] . . . the defendant was unconscious when (he/she) acted[,] [or the defendant ________ (insert other specific intent required in a homicide charge or other charged offense).]

A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.

You may not consider evidence of voluntary intoxication for any other purpose.

^[6] Section 22 provides in relevant part:

(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.

(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.