P. v. Jones

 

 

 

 

 

 

 

 

Filed 8/27/12  P. v. Jones CA2/1

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
ONE

 

 
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THE PEOPLE,               Plaintiff and Respondent,               v.   ANDREW JONES,               Defendant and Appellant.

B227030         (Los Angeles County       Super. Ct. No. BA313609)

 

            APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Michael E.
Pastor, Judge.  Affirmed.

            Sharon
Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer and Tita
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________
clear=all >

            Defendant
Andrew Jones appeals from the judgment entered following a jury trial in which
he was convicted of second degree murder
and mayhem, with findings he used a dangerous and deadly weapon.  Defendant contends the trial court committed
several instructional errors and erred by ordering him to submit to a clinical
interview by the prosecution’s mental
health expert.  We affirm.

>BACKGROUND

            In the
early morning hours of December 4,
2006, Rodney Wyatt was killed in a parking lot across Flower
Street from Staples
Center.  (Undesignated dates pertain to December 4, 2006.)  The deputy medical examiner testified that
Wyatt was six feet tall and weighed just 138 pounds.  He suffered more than 30 wounds to his head
and neck, mostly “sharp force” wounds that could have been inflicted with
broken glass.  The majority of the sharp
force wounds were on the right side of Wyatt’s face and neck.  Wyatt’s right ear was partially severed.  He had a circular pattern of cuts to his neck
that were consistent with a broken bottle being thrust into his neck.  There was also a shallow slash all the way
across Wyatt’s throat.  Many of the
incised wounds—including the partial severing of the ear and the circular cuts
to the neck—had a back to front trajectory, suggesting they were probably not
sustained in a face-to-face confrontation. 
Wyatt also sustained blunt force head trauma consistent with someone
stomping on the right side of his head, forcing the left side of his head
against the pavement.  He had multiple
head fractures, including the bridge of his nose, his jaw, and hard
palate.  Two teeth were broken off and he
had swallowed one of them.  Blood had
pooled in his left lung, indicating that he had been lying on his left
side.  Wyatt’s neck had also been
compressed.  The deputy medical examiner
testified Wyatt died from blunt and sharp force trauma to his head an neck, but
she opined that the blunt force injuries were more likely the cause of his
death.  Wyatt had no defensive wounds and
no wounds on his torso.

            Delmer
Totten lived in a loft on Flower Street two buildings down from the parking lot
where Wyatt died.  Totten’s friends James
Garstka and Ashley Likins visited Totten the night of the charged crimes, and
Likins parked her Nissan Xterra in the same parking lot, next to a green Toyota
4Runner.  Likins testified that she and
Garstka arrived around midnight.  A
little after 1:00 a.m., Totten went outside to empty his trash and check on
Likins’s car.  He saw Wyatt lying on his
side on a flattened cardboard box.  Wyatt
was dirty, unkempt, and had no shoes or blankets.  He appeared to be emaciated, confused, and
tired.  Totten was concerned and asked
Wyatt how he was and where his shoes were. 
Wyatt did not remember and requested a battery and piece of copper
wire.  Totten went back to his loft,
gathered a pair of shoes, a blanket, a small package of Nutter Butter cookies,
and a book of matches, then returned to the parking lot and handed these items
to Wyatt, who was still lying on his side.  Wyatt placed them on the ground in front of
him.  Defendant walked up and stood about
two feet from Totten and three feet from Wyatt. 
Defendant repeatedly yelled that a woman had taken $40,000 and two
ounces of cocaine from him.  He was
extremely agitated and aggressive and his speech was slightly slurred.  Totten thought defendant appeared to be
intoxicated and homeless.  Totten asked
defendant to calm down and keep his voice down. 
Wyatt asked defendant to go away and leave them alone.  Defendant responded by yelling angrily and
aggressively at Wyatt, “Don’t tell me what to do.  I’ll kick your ass.  Fuck you.” 
Defendant pulled crack pipes and what appeared to be rock cocaine from
his pockets and put them on the hood of one of the cars.  Totten feared there would be a physical
confrontation.  Totten told defendant to
calm down, but defendant largely ignored him and continued threatening
Wyatt.  After about 10 to 13 minutes, a
security guard from a neighboring building walked into the lot, and Totten felt
it was safe to leave.

            Garstka and
Likins testified that Totten was visibly upset when he returned to the
loft.  He told them an irate man threw
money and drugs on the hood of a car and was screaming about someone owing him
money.  Garstka and Likins left Totten’s
loft around 2:00 a.m.  Ten to 30 minutes
before they left, they heard loud talking or screaming and a loud bang like
someone hitting a car with a fist. 
Likins told a detective that she heard two men arguing loudly, then a
bang.

            As Garstka
and Likins reached the parking lot, they saw defendant pacing between Likins’s
car and the 4Runner while talking to himself. 
Garstka saw blood on the ground between the two vehicles.  Defendant repeatedly swept his hand along the
passenger side of Likins’s car.  Garstka
testified defendant was talking loudly, angrily, and nonsensically, while
Likins told the police that she heard defendant say, “I told him he shouldn’t
have.”  Likins and defendant looked at
one another and froze.  She testified “it
looked like he was trying to figure out something,” but thought he might hurt
her.  Garstka saw Wyatt’s “lifeless body”
lying in the pool of blood.  Likins and
Garstka both got into the car through the driver’s door.  From the passenger-side window Likins saw
Wyatt lying on his back between her car and the 4Runner, covered with so much
blood she could not determine his skin color. 
Defendant walked toward the driver’s door of Likins’s car as Garstka
started the engine.  Defendant was
looking into the car and speaking.  He
seemed frustrated.  As Garstka drove
away, he and Likins saw defendant walk up to Wyatt, lift his leg high, and
stomp his foot straight down on Wyatt’s head with great force.

            Likins
phoned 911 as they drove away and reported observing a fight, but she and
Garstka testified at trial that Wyatt was lying on the ground motionless the
entire time they were observing him. 
Likins also told the 911 dispatcher that defendant appeared to be crazed
or high on crack.

            A defense
investigator who spoke to Likins in July of 2010 testified that Likens said
defendant appeared to be under the influence of drugs and seemed as if he were
trying to figure out where he was and if she and Garstka were real.  Garstka told the same investigator that
defendant seemed not to know what was going on and was looking at them as if
trying to figure out if they were there.

            Los Angeles
Police Department Officers Alberto Vasquez and Antonio Ramirez went to the
parking lot in response to Likins’s 911 call. 
They saw defendant walking toward them and the 4Runner in a normal
fashion.  The officers called out to
defendant and identified themselves as police officers.  Defendant made eye contact with them, turned
around, and walked, then ran, toward the alley. 
The officers saw Wyatt lying on the ground next to the 4Runner, covered
in blood.  They chased defendant down the
alley, across Pico, through a parking lot, and down a second alley.  Defendant ran fast and never stumbled or
fell.  Vasquez saw defendant extract
something from his right pocket and toss it to the left as he ran.  Defendant hid behind a dumpster in the second
alley.  Vasquez was the first officer to
reach the dumpster.  He aimed his gun at
defendant and commanded him to stand up, turn around, and put his hands in the
air.  Defendant seemed calm, but did not
comply.  Five other officers arrived and
surrounded the dumpster.  Defendant
continued to defy them.  Officer Joseph
Marx testified that defendant repeatedly responded, “No” to the officers’
commands.  After Marx asked another
officer to get a Taser, defendant said, “Okay, I give up.”  Defendant then obeyed the officers’ commands
and was handcuffed without further incident.

            Officers
Vasquez, Marx, and Kathleen Owens-Shaw testified that defendant did not appear
to be under the influence, his speech was not slurred, he was not staggering or
talking to himself, and he was quiet and cooperative after surrendering.  Officer Donald Casper testified that he
thought defendant “may have been” under the influence of drugs or alcohol, but
did not explain his opinion.  Casper
agreed that defendant’s speech was not slurred, he was not staggering,
mumbling, talking to himself, or acting irrationally, and he was calm and
cooperative.  Casper did not perform any
sobriety or drug tests on defendant and testified he did not recall whether he
smelled alcohol on defendant.

            Marx
searched defendant and in defendant’s pocket found three folded, bloody dollar
bills and a cocaine pipe that appeared to contain cocaine residue.  Defendant had a scraped knee and his left
hand was bleeding from cuts on the fingers, a cut between the thumb and first
finger, and a wound on his palm from which the skin was missing.  His hands, arms, shoes, socks, and clothing
were covered in blood.  The officers
summoned paramedics, who bandaged defendant’s left hand.  Defendant was calm and cooperated with the
paramedics.

            At the
scene, defendant made three spontaneous statements.  He first said, “You better check on that drug
fiend.”  He then said, “Nigger ought to
be dead.  I gave him two dollars and that
nigger tried to rob me.”  A little later
defendant said, “I hope he’s going to be okay.” 
The officers put defendant in their squad car and kept him there for
about 45 minutes before driving him to the police station.  He was quiet and calm the entire time.

            At the
police station, Marx, Casper, and Detective Douglas Pierce took 30 to 40
digital photographs of defendant wearing, then removing, his bloody
clothing.  These photographs were
introduced at trial.  Defendant cooperated
with the officers’ instructions and was neither talking to himself nor falling
down.

            Vasquez and
Ramirez found a bloody, unopened package of Nutter Butter cookies in the alley
where Vasquez saw defendant discard something. 
Detectives Pierce and John Thacker arrived at the parking lot after
Wyatt had been transported to a hospital. 
Thacker and Pierce found a trail of bloody footprints leading from the
4Runner, across the parking lot, and down the alley.  They also found broken bottles and glass shards
near some bloody clothing.

            Sometime
after 6:00 a.m., Likins and Garstka observed blood and what appeared to be
flesh on the passenger side exterior of Likins’s car.  They notified the police and drove the car
back to the parking lot for the police to examine.  Pierce saw smeared blood and blood spatter on
the car and removed a piece of skin from it. 
A partial profile of DNA developed from the skin was consistent with
Wyatt.

            Likins and
Totten identified defendant’s photograph in a photographic array.  Totten wrote the following about
defendant:  “He was extremely agitated
and appeared very intoxicated.  He kept
yelling at me and then would yell at the homeless man whom I just gave a pair
of sneakers, green blanket, and pack of Nutter Butter cookies to.”

            The parties
stipulated that Dr. J. Frazier examined defendant at the jail dispensary about
11:40 a.m. in the presence of Thacker and Pierce, and defendant stated that he
used cocaine and alcohol, including 12 ounces of beer, the previous night.  Thacker testified that he heard defendant
“further explain[]” “that it was 12 ounces of alcohol only and . . . very
little cocaine.”  Defendant was calm and
cooperative at the dispensary.

            Pierce
testified that his observations of, and interactions with defendant did not
indicate intoxication.  Defendant was
cooperative, followed directions, and did not have an odor of alcohol.  Defendant’s behavior was “rational and
straightforward.”  Thacker and Pierce
discussed whether to ask the dispensary physician to take a sample of
defendant’s blood for alcohol and drug testing. 
Thacker ultimately decided not to do so, although he was aware that one
officer had said defendant might have been under the influence.  Thacker testified that he decided not to do
so because he believed that defendant’s behavior, as observed by a number of
officers, demonstrated that defendant’s thought processes were not impaired by
alcohol or drugs.  In particular, Thacker
cited defendant’s reaction when he saw the first officers arrive on the scene;
his swift and sure-footed flight from the officers; his acts of discarding the
cookies, hiding behind a dumpster, and refusing to surrender until surrounded
by numerous officers; and his conduct after he was detained and at the police
station.  Thacker concluded that
defendant’s actions demonstrated “conscious, purposeful, deliberate action that
requires some clear-headed, concise, lucid thinking.”  In addition, Thacker relied upon defendant’s
own statement to the doctor at the jail dispensary that he had consumed only 12
ounces of alcohol in the form of beer and very little cocaine the previous
night.

            Defendant
testified that he had been to a psychiatric hospital four or five times since
he moved to California 10 or 11 months before the charged offenses.  He had stopped taking his prescribed
psychiatric medicines.  He was homeless
and used crack cocaine and alcohol.  In
the days leading up the crimes he had been consuming a lot of both and had not
slept for at least a day, perhaps more. 
He consumed additional crack cocaine and alcohol on the day of the
crimes, including a pint of vodka, beer, and fortified wine.  Voices in his head disparaged and chided him,
but they did not tell him to kill.  He
bought food and fortified wine and walked to a parking lot across from Staples
Center, where he sat down to rest.

            Wyatt
walked into the same parking lot. 
Defendant agreed that Wyatt looked tired, thin, frail, and weak.  They initially got along.  Defendant shared some crack cocaine and wine
with Wyatt and offered him food.  Wyatt
asked defendant for money, and defendant gave him a few dollars.  Wyatt left. 
Wyatt later returned “in a rage.” 
He was aggressive and looked spaced out and crazy.  He picked up the bottle of wine and asked
defendant for some more crack cocaine. 
Defendant said he did not have any more. 
Wyatt repeatedly called defendant a liar and demanded cocaine.  Wyatt grasped the neck of the wine bottle
with both hands.  Defendant stood
up.  Wyatt drew the bottle back as if to
use it as a weapon and reached for defendant’s pocket.  Defendant swatted Wyatt’s hand away and Wyatt
swung the bottle at defendant.  Defendant
was afraid, but not angry.  He grabbed at
the bottle and it hit his shoulder. 
Defendant and Wyatt fought, then fell over a cement parking block onto
the ground.  After that “everything just
went . . . foggy, dim.”  Defendant
remembered picking up a bottle and swinging it and picking up a piece of glass
and using it to hit Wyatt once. 
Defendant was defending himself and did not think about what he was
doing.  He did not remember stomping on
Wyatt and did not remember seeing any of the witnesses in the parking lot.

            The next
thing defendant remembered was someone shining a light and yelling.  He looked down and saw Wyatt lying in a pool
of blood, became scared and paranoid, and ran. 
He was not trying to evade or hide from the police.  Defendant felt very bad about killing Wyatt.  He did not mean to do so and did not remember
what he had done, but he denied stealing the Nutter Butter cookies.

            Security
guard Juan Cuillar testified that about 2:00 a.m. he heard and saw two
African-American men arguing in the parking lot.  One man, whom Cuillar identified as Wyatt,
was standing and yelling at a calm man seated on the ground, whom Cuillar identified
as defendant.  Wyatt said that defendant
had scratched his car.  Cuillar thought
that defendant appeared to be homeless, but not intoxicated.  Wyatt did not appear to be homeless.  Defendant told Cuillar that everything was
fine, so Cuillar left and went inside one of the nearby buildings.  Cuillar did not see anyone else in the
parking lot.

            The
toxicologist from the coroner’s office who tested Wyatt’s blood testified for
the defense that Wyatt had cocaine and metabolites of cocaine in his blood,
indicating consumption of cocaine between two hours to 30 minutes before his
death.  He also had a trace amount of
alcohol in his blood.  The toxicologist
thought Wyatt would have been under the influence of cocaine, which is a
stimulant.

            The jury
convicted defendant of second degree murder and mayhem and found he used a
deadly and dangerous weapon in the commission of each offense.  The jury acquitted him of robbery and petty
theft.  The court sentenced defendant to
prison for 16 years to life for the murder and weapon enhancement and
stayed the sentence on the mayhem conviction pursuant to Penal Code section
654.  (Undesignated statutory references
are to the Penal Code.)

>DISCUSSION

1.         Order for compelled
interview with prosecution mental health expert

            About three
months before defendant’s trial began, the defense provided the prosecution
with discovery regarding its anticipated mental state defense, including
medical records for defendant and two letters to defense counsel from
psychologist Dr. Ari Kalechstein.  These
letters stated that Kalechstein had “evaluated” defendant and reviewed the
medical records defense counsel had provided and “the discovery that was
included in the murder book.” 
Kalechstein opined, “[I]t is my opinion that [defendant’s] behavior at
the time of the incident was consistent with that of a person who acted without
thinking, i.e., acted without deliberating, acted without considering the
consequences of his actions, acted without planning.  Furthermore, at times during the incident,
[defendant’s] behavior was consistent with that of an individual who was
unaware of his behavior and the context in which it occurred.”

            In
response, the prosecutor sought an order compelling defendant to submit to a
clinical interview by a prosecution-retained psychiatrist, Dr. Kory Knapke,
under authority of section 1054.3, subdivision (b).  Defendant vigorously opposed the prosecutor’s
request on a variety of grounds, including that it would violate his privilege
against self-incrimination and his rights to due process, counsel, and a fair
trial.  Defense counsel told the court
that Kalechstein’s testimony would be based solely upon statements of
witnesses, defendant’s medical records, and the information set forth in
Kalechstein’s unredacted report, not upon the results of his clinical interview
or testing, and that counsel would provide the prosecutor with the unredacted
report before Kalechstein testified, if she decided to call him as a
witness.  Counsel further represented
that Kalechstein would opine as stated in his two letters; that defendant’s
behavior was consistent with someone suffering a blackout; that such a blackout
could have been caused by defendant’s consumption of alcohol and drugs, lack of
sleep, mental illness, and trauma associated with experiencing Wyatt’s death;
and how alcohol and drug use can induce a blackout or amnesia.  Defense counsel also suggested she could
render section 1054.3, subdivision (b), inapplicable by having Kalechstein testify
only about the causes of blackouts and how defendant’s behavior was consistent
with someone who had suffered a blackout.

            The trial
court considered the motion over the course of several pretrial hearings, and
initially ruled that the motion was premature because defendant had not then placed
his mental state in issue.

            The court
reconsidered its ruling during jury selection after noting that defense counsel
had raised mental state issues such as intoxication and unconsciousness during
voir dire.  After hearing additional
argument on the issue, during which defense counsel suggested that she could
limit her direct examination of Kalechstein to hypothetical questions, the
court concluded that defendant had not only placed his mental state in issue,
it was the “foundation of the defense case.” 
The court found that it would be inappropriate and unsatisfactory to
limit the defense expert’s testimony as defense counsel suggested in an attempt
to avoid application of section 1054.3, subdivision (b).  The court further found it would be unfair to
the prosecution and Dr. Knapke to “wait until one particular point before the
prosecution is allowed to even begin this whole process,” given that Knapke
would have to find time in his schedule, get access to defendant, and “think
and evaluate and prepare a report.”  The
court ordered defendant to submit to an unrestricted clinical interview,
without any psychological or psychiatric testing, by Knapke whenever Knapke
could obtain access to defendant, but Knapke would be prohibited from
disclosing anything pertaining to the interview to the prosecutor, defense
counsel, the court or anyone else until the court determined that defendant had
actually put his mental state in issue through Kalechstein’s or his own
testimony.  The court denied defense
counsel’s requests to require that Knapke either tape record the interview or
conduct it in the presence of defense counsel.

            Several
days later, defense counsel again asked the court to require Knapke to tape
record the interview.  Counsel argued
that Knapke “is going to . . . conduct a detailed interview of [defendant]
regarding the facts, underlying facts of this case which will result in
possible impeachment evidence and will be used by the prosecutor to impeach my
client should he testify or to impeach my expert.  [¶] . . . [¶] . . .  We should have an absolute clear record of
what was said between Doctor Knapke and my client.”  The court again refused to require Knapke to
record the interview or allow defense counsel to be present, but ruled that
Knapke was free to do either or both.

            About a
week later, Knapke notified the court that defendant had declined to meet with
him unless defense counsel were present and the interview was taped.  Knapke did not want to conduct the interview
in the presence of counsel and “there was some issue about the sheriff
declining to have a tape recorder.” 
Thus, the interview did not occur. 
Defense counsel informed the court that she had decided not to call
Kalechstein, agreed this was “a strategic and tactical decision,” and explained
that she wanted to avoid having the court instruct the jury that defendant had
refused to be interviewed by the prosecution’s expert.

            Defendant contends that (1) the
trial court’s order violated section 1054.3, subdivision (b) because the
clinical interview ordered by the court did not bear a reasonable relationship
to his mental state defense, given his offer to limit Kalechstein’s testimony;
(2) the order violated his privilege against self-incrimination and his rights
to due process, counsel, and a fair trial; and (3) the court abused its
discretion by refusing to require either the presence of defense counsel or the
tape recording of the interview.

            Section
1054.3, subdivision (b)(1) provides as follows:  “Unless
otherwise specifically addressed by an existing provision of law, whenever a
defendant in a criminal action or a minor in a juvenile proceeding brought
pursuant to a petition alleging the juvenile to be within Section 602 of the
Welfare and Institutions Code places in issue his or her mental state at any
phase of the criminal action or juvenile proceeding through the proposed
testimony of any mental health expert, upon timely request by the prosecution,
the court may order that the defendant or juvenile submit to examination by a
prosecution-retained mental health expert. 
[¶]name=I5F89FC15027211DF8B7FBD9EC1ECA3D5>  (A) The prosecution shall bear the cost of
any such mental health expert’s fees for examination and testimony at a
criminal trial or juvenile court proceeding. [¶]  name=I5F89FC16027211DF8B7FBD9EC1ECA3D5>(B)
The prosecuting attorney shall submit a list of tests proposed to be
administered by the prosecution expert to the defendant in a criminal action or
a minor in a juvenile proceeding.  At the
request of the defendant in a criminal action or a minor in a juvenile proceeding,
a hearing shall be held to consider any objections raised to the proposed tests
before any test is administered.  Before
ordering that the defendant submit to the examination, the trial court must
make a threshold determination that the proposed tests bear some reasonable
relation to the mental state placed in issue by the defendant in a criminal
action or a minor in a juvenile proceeding. 
For the purposes of this subdivision, the term ‘tests’ shall include any
and all assessment techniques such as a clinical interview or a mental status examination.”

a.         Application of statue

            At the time
the trial court ordered defendant to submit to a clinical interview with
Knapke, defendant had
made it clear that his defense would revolve around a theory that he lacked the
requisite mental states for the charged offenses due to href="http://www.sandiegohealthdirectory.com/">voluntary intoxication and
mental illness.  He had expressly
informed the court and the prosecutor that he would introduce the testimony of
Kalechstein, a psychologist, in support of the mental state defenses.  Defendant was thus “plac[ing] in issue his
. . . mental state . . . through the proposed testimony of any mental health expert” and fell squarely
within the statute, whether or not Kalechstein’s ultimate testimony was based
upon his interview with defendant or simply his expertise, without reference to
anything he learned through his evaluation of defendant.  The statute does not require that the “the
proposed testimony of any mental health expert” be based upon an interview or
testing in order for the court to order a defendant to “submit to examination
by a prosecution-retained mental health expert.”  Similarly, the “threshold determination that
the proposed tests bear some reasonable relation to the mental state placed in
issue by the defendant” turns upon the mental state in issue, not the bases of
the defense expert’s testimony.  Here,
because Kalechstein had interviewed and evaluated defendant, and defendant
intended to rely upon the theories set forth in Kalechstein’s letter, that is,
he acted without thinking and was “unaware of his behavior and the
context in which it occurred” as a result of his mental illness and voluntary
intoxication, a
clinical interview was reasonably related to the mental state defendant planned
to place in issue.

            Defendant’s reliance upon a
distinction drawn in People v. Gonzales
(2011) 51 Cal.4th 894 (Gonzales) is
unavailing for two reasons.  In >Gonzales, the Supreme Court stated, “As
the Attorney General points out, had the defense been content with evidence of
battered woman syndrome in general, without presenting experts who had examined
defendant, the prosecution would have had no ground for requesting an
examination by its experts.  But since the
defense did present expert testimony based on interviews with defendant, the
court properly found that fairness required giving the prosecution the
opportunity to counter that testimony.” 
(Gonzales, at pp.
928–929.)  Gonzales addressed the propriety of an examination under authority
of People v. Danis (1973) 31
Cal.App.3d 782 and Evidence Code section 730, not section 1054.3, subdivision
(b), which was enacted while Gonzales’s case was pending in the Supreme
Court.  (Gonzales, at pp. 925–927.) 
The application of section 1054.3, subdivision (b) is not limited to
defendants who have placed their mental state in issue through the proposed
testimony of a mental health expert who
examined or interviewed defendant. 
And unlike the situation posited in Gonzales,
defendant’s proposed expert had examined him.

b.         Constitutional
protections

            “A criminal defendant who tenders
his or her mental state as a guilt or penalty issue waives the Fifth Amendment
privilege against self-incrimination, and the Sixth Amendment right to counsel,
‘“to the extent name="citeas((Cite_as:_53_Cal.4th_1112,_*1117,">necessary to permit a
proper examination of that condition.”’” 
(Maldonado v. Superior Court
(2012) 53 Cal.4th 1112, 1116–1117 (Maldonado),
quoting People v. Carpenter (1997) 15 Cal.4th 312, 412.)  In addition, “the Fifth Amendment does not
provide a privilege against the compelled ‘disclosure’ of self-incriminating
materials or information, but only precludes the use of such evidence in a
criminal prosecution against the person from whom it was compelled.”  (Maldonado,
at p. 1134.)  Thus, the trial
court’s order that defendant submit to an examination by the prosecution’s
mental health expert did not violate the Fifth Amendment.  Nor would the Fifth Amendment have been
violated by defendant’s act of answering the expert’s questions or making
statements to the expert in the course of the ordered examination, had he
complied with the court’s order.  The
Fifth Amendment would have come into play only if and when defendant’s
statements to the prosecution expert were used against him at trial, and only
to the extent that he had not waived his privilege by tendering his mental
state.  Given the course of events in
this case, there was no violation of the Fifth Amendment.

            As previously noted, by placing his
mental state in issue, defendant waived his Sixth Amendment right to counsel,
“to the extent necessary to permit a proper examination.”  (Maldonado,
supra, 53 Cal.4th at pp.
1116–1117.)  In addition, the order to
submit to the section 1054.3, subdivision (b) examination did not violate
defendant’s Sixth Amendment because, “As [the Supreme Court] long ago made
clear, such examinations do not violate a represented defendant’s right to
counsel so long as counsel is notified in advance of examination appointments
and their purpose, and has the opportunity to consult with the client before
they occur.”  (Maldonado, supra, 53
Cal.4th at p. 1142.)

            Similarly, by placing his mental
state in issue, defendant waived any due process right to object to examination
by a prosecution expert.  (>Gonzales, supra, 51 Cal.4th at p. 929 & fn. 18.)

c.         Tape recording and
presence of counsel

            Neither
section 1054.3 nor any other authority required that a recording be made of the
clinical interview by the prosecution’s expert or that defense counsel be
allowed to attend that interview. 
Defendant’s asserted need for a recording of the interview was
necessarily based upon an assumption that the statements he would make to
Knapke about the “facts of the case” would be inconsistent with the testimony
defendant would give at trial.  Defendant
thus could obviate the need for a recording simply by testifying truthfully and
making truthful statements to Knapke, thereby avoiding any inconsistent
statements.  Counsel failed to explain
how statements by defendant to Knapke could be used to impeach Kalechstein.  The experts might well have reached different
conclusions regarding defendant’s mental state, but this would not be a matter
of impeachment, and defendant failed to show why or how a recording would be
necessary or even helpful in rebutting an opinion by Knapke that was
unfavorable to the defense.

            There is a
substantial risk that if counsel were present, she would prevent defendant from
answering questions she considered damaging to the defense or otherwise
influence defendant’s responses, thus preventing the expert from forming an
accurate assessment of defendant’s mental state.  While counsel would naturally want to protect
her client, her intervention would undermine the entire purpose the compelled
interview, yet serve no valid purpose because defendant waived his Fifth Amendment privilege against
self-incrimination, his Sixth Amendment right to counsel, and any due process
claim “to the extent necessary to permit a proper examination.”  (Maldonado,
supra, 53 Cal.4th at pp.
1116–1117.)  Accordingly, the
trial court did not act arbitrarily, capriciously, or in a patently absurd
manner by permitting, but not mandating, a recording and counsel’s attendance.

2.         Refusal to instruct on
heat of passion

            The trial court instructed the jury on
first degree murder, second degree murder, voluntary manslaughter on an
unreasonable self-defense theory, involuntary manslaughter based on
unconsciousness resulting from voluntary intoxication, intoxication as negating
a required mental state or specific intent, self-defense, and defense against a
forcible and atrocious crime.

            Defendant requested instruction upon
heat of passion, but agreed with the trial court that it was inapplicable.  Just before the court instructed the jury,
defendant asked the court to instruct on heat of passion, saying, “[T]he facts
presented, testified to by the witnesses including [defendant], show that he
reacted to the provocation by the victim. 
The provocation being the victim going into his pocket or reaching for
his pocket and swinging the wine bottle at him.” The trial court denied
defendant’s request to instruct on heat of passion, noting that it was
instructing on self-defense and unreasonable self-defense and did not “believe
that the quantum and quality of evidence in this case is sufficient to justify
heat of passion or provocation as a separate theory
. . . .”  Defendant
contends this was error and violated due process.

          “Where an intentional and unlawful killing occurs ‘upon a name="SR;23376">sudden quarrel or heat of name="SR;23381">passion’ (§ 192, subd. (a)), the malice aforethought
required for murder is negated, and the offense is reduced to voluntary
manslaughter—a lesser included offense of murder.”  (People
v. Carasi (2008) 44 Cal.4th 1263, 1306 (Carasi).)  Heat of passion
has both objective and subjective components. 
(People v. Moye (2009) 47
Cal.4th 537, 549 (Moye).)  To satisfy the objective component, the claimed
provocation must be sufficient to cause an ordinary person of average disposition to act rashly
or without due deliberation and reflection, from passion rather than
from judgment.  (Moye, at p. 550; Carasi,
at p. 1306.)  “The provocation . . .
must be caused by the victim
[citation], or be conduct reasonably believed by the defendant to have been
engaged in by the victim.”  (>Moye, at pp. 549–550.)  A defendant may not “‘“set up his own
standard of conduct and justify or excuse himself because in fact his passions
were aroused. . . .”’”  (>People v. Cole (2004) 33 Cal.4th 1158, 1215–1216, quoting >People v. Steele (2002) 27 Cal.4th 1230,
1252.)  “To satisfy the subjective element of this form of
voluntary manslaughter, the accused must be shown to have killed while under
‘the actual influence of a strong passion’ induced by such provocation.”  (Moye,
at p. 550.)

            A trial
court must give a requested instruction only if it is supported by substantial
evidence, that is, evidence sufficient to deserve jury consideration.  (People
v. Marshall (1997) 15 Cal.4th 1, 39.) 
The court must instruct upon all theories of a lesser included offense
that find substantial support in the evidence. 
(People v. Breverman (1998) 19
Cal.4th 142, 162 (Breverman).)  The effect of an error in refusing to instruct on a lesser included
offense is analyzed pursuant to People v.
Watson (1956) 46 Cal.2d 818, 836.  (>Moye, supra, 47 Cal.4th at p. 541.)

            Here there
was no evidence that defendant was subjectively under the influence of a strong
passion aroused by a provocation when he killed Wyatt.  Defendant testified that when Wyatt attempted
to reach in his pocket and swung a bottle at him, he was afraid but not
angry.  Defendant remembered swinging a
bottle and striking Wyatt once with a pieces of glass, but did not remember
anything after that.  The defense theory
was that defendant was not conscious of his behavior from that moment forward.  A blank memory is not equivalent to acting
under the influence of a strong passion, and defendant does not explain how one can act under the influence
of anything if unconscious.  Defendant’s testimony thus did not
provide substantial evidence that he was actually under the influence of a
strong passion when he repeatedly cut Wyatt’s face and head, much less when he
later stomped on Wyatt’s head.

            Nor did the
testimony of any other witness provide substantial evidence supporting the
subjective element of heat of passion. 
Totten’s testimony supported an inference that defendant, not Wyatt, was
the aggressor and source of any provocation. 
Likins and Garstka saw defendant stomp on Wyatt’s head after Wyatt had
been lying, immobile and apparently unconscious, on the ground for at least as
long as Likins and Garstka observed defendant pacing between Likins’s car and
the adjacent car while they approached Likins’s car, got in, and drove
away.  Totten, Garstka, and Likins
variously testified or told the police that defendant was intoxicated, crazy,
under the influence of drugs, or profoundly confused, but not that he was
acting under the influence of strong emotion. 
Finally, the statements by defendant to which Likins and several police
officers testified fail to show that defendant was subjectively under the
influence of a strong passion aroused by a provocation when he killed
Wyatt.  The statements tended to show
defendant’s motive and animosity toward, or concern for, Wyatt, but such mental
states do not demonstrate the subjective element of heat of passion.

            To the
extent defendant argues that his fear induced by Wyatt’s conduct supported
instruction upon heat of passion, he is wrong. 
Although heat of passion may be based upon “any ‘“‘[v]iolent, intense, high-wrought or
enthusiastic emotion’”’ [citation] other than revenge” (>Breverman, supra, 19 Cal.4th at p. 163), a defendant’s fear that supports
instruction upon self-defense or unreasonable self-defense does not by itself
support the subjective element of heat of passion.  (Moye,
supra, 47 Cal.4th at p. 555.)  For example, “In Breverman there
was affirmative evidence that the defendant panicked in the face of an attack
on his car and home by a mob of angry men and had come out shooting, and
continued shooting, even after the group had turned and ran.  ‘At one point in his police statement,
defendant suggested that he acted in one continuous, chaotic response to
the riotous events outside his door.’ 
[Citation.]”  (>Moye, at p. 555.)  Here, there was no comparable
testimony because defendant testified he blacked out after once swinging a
piece of glass at Wyatt.  Defendant’s
testimony supported instruction upon self-defense and unreasonable
self-defense, but “[t]here was insubstantial evidence . . . to establish that
defendant ‘actually, subjectively, kill[ed] under the heat of passion.’”  (Id.
at p. 554.)

            Defendant’s
further contention that the wounds he inflicted upon Wyatt show that he “killed
while acting in fear, anger, or rage” is unsupported by any authority and
necessarily speculative, especially in light of defendant’s testimony that he
remembered nothing.  A killer might
inflict numerous, even gruesome, wounds without acting under “the actual influence of a strong passion”
induced by sufficient provocation. 
Absent evidence that “‘the reason of the accused was obscured or
disturbed by passion to such an extent as would cause the ordinarily reasonable
person of average disposition to act rashly and without deliberation and
reflection, and from such passion rather than from judgment’” (>People v. Barton (1995) 12 Cal.4th 186,
201), heat of passion is inapplicable. 
Given the state of the record, especially defendant’s testimony that he
was not conscious of what he was doing, the record did not support an inference
that defendant’s reason was obscured or disturbed by passion.

            Similarly, defendant’s speculative
contention that he “was in such a state that he was unaware his own hand was
being cut by the pieces of glass” fails to provide substantial evidence of the
subjective element of heat of passion.

            Accordingly,
the trial court did not err by refusing to instruct upon heat of passion.

            In any
event, the absence of the instruction could not possibly have contributed to
the verdict, and was thus harmless even under the more stringent standard of >Chapman v. California (1967) 386
U.S. 18, 24 [87 S.Ct. 824], because the record does not support a finding on
heat of passion and, in light of the evidence, there is thus no reasonable
possibility that the absence of the instruction contributed to the
verdict.  (People v. Ochoa (1998)
19 Cal.4th 353, 479.)  As previously
noted, the record was
devoid of evidence that defendant subjectively harbored a strong passion and
acted rashly or impulsively while under its influence.  According to defendant himself, Wyatt’s
conduct frightened, but did not anger him. 
Thereafter, he was unconscious, which effectively precluded him from
testifying he was acting under the influence of strong passion.  If the jury rejected defendant’s claim of
unconsciousness, it was nonetheless left with no evidence that defendant
subjectively acted under the influence of a strong passion.  It is thus simply not reasonably
possible that the refusal to instruct on heat of passion contributed to the verdict,
especially in light of
Totten’s testimony that defendant approached the frail, weak, emaciated Wyatt
and Totten himself in an “extremely aggressive” fashion, ranting about a theft
and yelling loudly, angrily, and aggressively at Wyatt; Totten’s testimony that
defendant threatened to “kick [Wyatt’s] ass” when Wyatt asked defendant to go
away; Totten’s testimony that he feared there was about to be a physical
confrontation at that time; defendant’s contradictory testimony that he never
saw Totten or any of the other witnesses and treated Wyatt kindly by sharing
his drugs and alcohol with Wyatt and giving Wyatt money; defendant’s admission
that Wyatt was frail and weak; the medical examiner’s testimony that Wyatt was
six feet tall and weighed only 138 pounds; and the undisputed evidence that
there was a time lapse between the attack with broken glass and the stomping
that was at least as long as the time it took for Garstka and Likins to
approach the parking lot, get into Likins’s car, and drive away, and perhaps
longer.

3.         Failure to instruct sua
sponte on Garcia theory of voluntary
manslaughter

            Relying upon a case decided
after his trial and which has since been granted review (People v. Bryant (2011) 198 Cal.App.4th 134 (review granted Nov.
16, 2011, S196365) (Bryant)),
defendant contends that the trial court had a duty to instruct sua sponte on
voluntary manslaughter based upon the theory addressed in People v. Garcia (2008) 162 Cal.App.4th 18 (Garcia).

            Even in the
absence of a request, a trial court must instruct on general principles of law
that are commonly or closely and openly connected to the facts before the court
and that are necessary for the jury’s understanding of the case.  (People
v. Hovarter (2008) 44 Cal.4th 983, 1021.)

         In name="SR;1005">Garcia, the victim and Garcia, who was holding a
shotgun, were involved in a confrontation. 
The victim lunged at Garcia. 
Garcia feared the victim would take the shotgun, so he swung the butt of
the gun at the victim to make him back off, but struck the victim in the
face.  This caused the victim to fall and
hit his head on the sidewalk, which later caused the victim’s death.  (People v. Garcia, supra, 162 Cal.App.4th at
pp. 23, 25.)  Garcia was charged
with second degree murder, and the trial court instructed the jury on voluntary
manslaughter based upon heat of passion and unreasonable self-defense as a
lesser included offense.  A jury
convicted Garcia of voluntary manslaughter. 
On appeal, Garcia contended that the trial court erred by refusing to
instruct on involuntary manslaughter on the theory that the killing “name="SR;2416">was committed without
malice and without
either an intent
to kill or name="SR;2428">conscious disregard for
human life.”  (Id. at p.
26.)  The court in Garcia thus
addressed whether an unintentional killing without implied malice during
commission of an inherently dangerous felony (aggravated assault) could support
an instruction for involuntary manslaughter where the merger doctrine
applied to preclude application of the second degree felony-murder rule.  (Id. at pp. 28–29.)  The
court ultimately rejected Garcia’s instructional error claim, stating
that “an unlawful killing name="SR;2490">during the commission
of an inherently
dangerous felony, even
if unintentional, is
at name="SR;2503">least voluntary name="SR;2505">manslaughter.”  (name="SR;2507">Id. at p. 31.)

            Neither Garcia
nor any other citable authority establishes the theory of voluntary
manslaughter upon which defendant argues the trial court was required to
instruct sua sponte.  Well established
principles limit voluntary manslaughter to an unlawful killing upon
sudden quarrel or heat of passion or in an actual, but unreasonable, belief in
the need to defend against imminent death or great bodily injury.  (§ 192, subd. (a); In re Christian S. (1994) 7 Cal.4th 768, 783.)  The trial court in Garcia so instructed, the jury convicted Garcia of voluntary
manslaughter, apparently based upon one of the two recognized theories, and the
appellate court did not purport to add a new category of offense constituting
voluntary manslaughter.  It instead made
the statement upon which defendant relies in the course of its analysis
rejecting Garcia’s claim that his offense was involuntary manslaughter.  Thus, the statement upon which defendant
relies was dictum.  Bryant, supra, 198
Cal.App.4th 134, upon
which defendant relied, was decided the year after defendant’s trial.  Accordingly, even if the theory articulated
in Garcia is ultimately recognized as
a valid third basis for voluntary manslaughter, it cannot be said that at the
time of defendant’s trial it was a general principle of law upon which the
trial court was required to instruct sua sponte.  “Given the undeveloped state of the . . .
rule, we cannot impose upon the instant trial court so formidable a duty as to
conceive and concoct an instruction embodying that rule.  ‘The duty of the trial court involves
percipience—not omniscience.’ 
[Citations.]”  (>People v. Flannel (1979) 25 Cal.3d 668,
683.)

         In
addition, even if the theory articulated in Garcia
is ultimately recognized as a valid third basis for voluntary manslaughter, the
evidence in this case would not warrant such an instruction because Garcia
considered an unintentional killing without
malice.  “[M]alice may be [either]
express or implied.  It is express when
there is manifested a deliberate intention unlawfully to take away the life of
a fellow creature.”  (§ 188.)  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.)name="citeas((Cite_as:_2012_WL_926694,_*4_(Cal">  Here, the evidence showed that defendant
repeatedly slashed at Wyatt’s face and neck, leaving Wyatt lying motionless and
apparently unconscious in a pool of blood. 
Defendant then returned and stomped on Wyatt’s head, forcing it against
the pavement.  Unless the jury adopted
defendant’s unconsciousness claim, which would lead to a verdict of involuntary
manslaughter, there was no evidence from which a rational jury could have
concluded that defendant stomped on Wyatt’s head without harboring at least
implied malice.  Accordingly, the trial
court would have had no sua sponte duty to instruct the jury on voluntary
manslaughter pursuant to the dictum in Garcia.

4.         >Refusal of instruction regarding failure to collect and
preserve blood sample

            During his trial, defendant
filed a motion to dismiss the charges due to the failure of the police to
collect a sample of defendant’s blood that could be tested for alcohol and
drugs.  Defendant’s motion was based upon
Arizona v. Youngblood (1988) 488 U.S. 51 [109 S.Ct.
333] (Youngblood) and California v. Trombetta (1984) 467 U.S. 479
[104 S.Ct. 2528] (Trombetta), which essentially require law enforcement
agencies to preserve evidence that both possesses “exculpatory value that was
apparent before the evidence was destroyed” and is “of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably
available means.”  (Trombetta, at p. 489.)  The trial court denied the motion because it
found no bad faith on the part of the police officers.  Defendant subsequently requested the
following instruction:  “If you find that
the state has allowed to be destroyed or lost any evidence whose content or
quality are in issue, you may infer that the true fact is against the state’s
interest.”  The trial court refused to so
instruct, stating that there was no bad faith and defendant had extensively
cross-examined Thacker on this point and “called into question his abilities and
his credibility.  I think that is all
that is required under existing law.” 
Defendant contends the trial court’s refusal to give the requested
instruction was error and violated his right to due process.

            Youngblood
and Trombetta involved
claims that due process was violated
because the police failed to preserve evidence that had already been
collected.  In this case, defendant’s
blood was not sampled or tested.  His
complaint is the failure of the police to collect evidence, not their failure
to preserve it.  “Although
. . . there might be cases in which the failure to collect or obtain
evidence would justify sanctions against the prosecution at trial, [the Supreme
Court has] continued to recognize that, as a general matter, due process does
not require the police to collect particular items of evidence.”  (People v. Frye (1998) 18 Cal.4th 894,
943, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th
390, 421, fn. 22.)  California cases have
uniformly rejected due process claims based upon a failure
to collect evidence.  (>Frye, at p. 943 [no duty to collect
additional bloodstains and other items at crime scene]; People v. Daniels (1991) 52 Cal.3d 815, 855 [no duty to perform
gunshot residue test on witness]; People
v. Farmer (1989) 47 Cal.3d 888, 911 [no duty to take “more and better
photographs” of footprints]; People v. Hogan (1982) 31 Cal.3d 815, 851
[no duty to collect scrapings from victim’s fingernails], disapproved on
another ground in People v. Cooper
(1991) 53 Cal.3d 771, 836; People v.
Velasco (2011) 194 Cal.App.4th 1258, 1263 (Velasco) [no duty to confiscate clothing from prison inmate
defendant]; People v. Callen (1987)
194 Cal.App.3d 558, 561 [no duty to determine identity of anonymous
caller-informant]; People v. Ventura
(1985) 174 Cal.App.3d 784, 794–795 (Ventura)
[no duty to administer intoxication tests to suspect arrested in fatal
shooting]; People v. Bradley (1984)
159 Cal.App.3d 399, 405–406 [no duty to collect bloodstains].)

            In Velasco, the court noted the fundamental distinction between a
failure to preserve evidence and a failure to collect it in the first
place:  “It is axiomatic that the constitutional due process
guaranty is a bulwark against improper state action.  ‘[T]he core purpose of procedural due process
[is] ensuring that a citizen’s reasonable reliance is not frustrated by
arbitrary government action.’ 
[Citation.]  If the state took no
action, due process is not a consideration, because there is no ‘loss of evidence
attributable to the Government.’  (Youngblood, supra, 488 U.S. at p.
57.)”  (Velasco, supra, 194 Cal.App.4th at p. 1263.)

            Defendant relies upon >Miller v. Vasquez (9th Cir. 1989) 868
F.2d 1116, which extended Trombetta
and Youngblood by holding that due
process is violated by a bad faith failure to collect evidence.  Miller
is not binding on this court (People
v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3), and contradicts the long line of California
authorities cited herein.

            Yet if we
were to conclude that due process includes a duty to collect evidence,
defendant’s claim would fail because all that he can say about his blood sample
is that it could have been tested and the results may have helped establish his
mental state defense.  He thus would have
been required to show that the police acted in bad faith by failing to have his
blood drawn (Youngblood, 488 U.S. at pp. 57–58; >People v. DePriest (2007) 42 Cal.4th 1,
42).

            “The
presence or absence of bad faith by the police . . . must necessarily turn on
the police’s knowledge of the exculpatory value of the evidence at the time it
was lost or destroyed.”  (>Youngblood, supra, 488 U.S. at p. 57, fn. *.) 
The trial court repeatedly found that the officers had not acted in bad
faith, and its finding is reviewed under the substantial evidence
standard.  (Velasco, supra, 194
Cal.App.4th at p. 1262.)  Thacker
testified at length about why he decided not to ask that medical personnel draw
a sample of defendant’s blood.  The
decision was principally based upon defendant’s own statement to the doctor at
the jail dispensary that he had consumed only 12 ounces of alcohol in the form
of beer and very little cocaine the previous night and information Thacker
received from the responding officers about defendant’s conduct, including his
reaction when he saw the first officers on the scene, running swiftly from the
officers without stumbling, discarding the cookies, hiding, and failing to
surrender until a large number of offices surrounded him, which led Thacker to
conclude that defendant was neither physically nor mentally impaired by alcohol
or drugs.  In addition, Pierce, with whom
Thacker consulted about whether to draw a sample of defendant’s blood,
testified that his own observations of, and interactions with defendant did not
indicate that defendant was under the influence.  Pierce noted that defendant was cooperative,
followed officers’ directions, did not emit an odor of alcohol, and exhibited
“rational and straightforward” behavior when Pierce assessed him to determine
whether blood should be drawn.  All of
the police officers who participated in or witnessed the chase testified that
defendant ran swiftly and never stumbled or fell.  Officers Vasquez, Shaw, and Marx testified
that defendant did not seem to be under the influence.  Although Casper testified that defendant
might have been under the influence, he also testified that defendant was not
acting irrationally, slurring his speech, or falling.  Marx testified that once someone mentioned a
Taser, defendant surrendered and was thereafter cooperative.  Marx and Casper further testified that when
they took photographs of defendant at the police station, he complied with the
officers’ instructions and did not fall, yell, or talk to himself.  All of this testimony provided substantial
evidence in support of the trial court’s finding that the police did not act in
bad faith, and simultaneously established that defendant’s blood sample did not
possess “exculpatory value that was apparent” at the time.  As stated in Ventura, supra, 174
Cal.App.3d at page 795, “The officers could not have foreseen that the
defendant would raise an intoxication issue by way of defense.”

            We further
note that defendant introduced evidence of his intoxication through his own
testimony, Casper’s testimony, Totten’s testimony, Totten’s statement to the
police, Likins’s statement to the defense investigator, and Likins’s statements
during the 911 call.  Given defendant’s
extensive cross-examination
of Thacker and Pierce about the failure to obtain a sample of defendant’s
blood, and defendant’s arguments to the jury, the jury was well aware of the
reason defendant was unable to introduce blood test results in support of his
unconsciousness defense.

         Accordingly,
we conclude that the trial court properly denied defendant’s request for an
instruction regarding the failure to collect evidence because the police did
not violate due process.  (People v.
Farnam (2002) 28 Cal.4th 107, 167.)

5.         Flight instruction

            Over
defendant’s objection, the trial court instructed the jury on flight using a
modified version of CALJIC No. 2.52, as follows:  “The flight of a person immediately after the commission of a
crime, or after he is accused of a crime, is not sufficient in itself to
establish his guilt, but is a fact which, if proved, may be considered by you
in the light of all other proved facts in deciding whether a defendant is
guilty or not guilty.  Whether or not
evidence of flight shows a consciousness of guilt, and the significance to be
attached to such a circumstance, are matters for your determination.”

            Defendant contends that
instructing on flight was error violating due process because it permitted an
unjustified inference about his mental state at the time of the offense and
reduced the prosecution’s burden of proof. 
He acknowledges that the California Supreme Court has repeatedly
rejected similar claims.

            A flight
instruction is proper and requ