Wickersham
Filed 1/29/13 P. v. Wickersham CA5
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TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DAVID JOHN WICKERSHAM,
Defendant and
Appellant.
F062477
(Super.
Ct. No. CRM000790)
APPEAL
from a judgment of the Superior Court
of
County. Ronald W.
Hansen, Judge.
Charles M.
Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and
Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On appeal,
following his conviction for first degree
murder, defendant David John Wickersham contends there is insufficient
evidence of deliberate and premeditated murder.
Defendant argues his statements to interrogating officers should have
been excluded as involuntary for lack of a knowing and intelligent waiver of
his right to remain silent. Defendant
finally contends that he was denied the right to a fair trial because records
of his prior mental commitments, relied upon by his expert witness in the
sanity phase of his trial, were excluded by the trial court as inadmissible
hearsay. We reject these arguments and
affirm the judgment.
PROCEDURAL HISTORY
An
information was filed on September 3,
2009, charging defendant with one count of first degree murder
(Pen. Code, § 187, subd. (a)).
name="_ftnref1" title="">[1] The information alleged a prior serious
felony conviction within the meaning of the three strikes law (§ 1170.12,
subd. (c)(1)), a prior prison term enhancement (§ 667.5, subd. (b)), and
the personal use of weapons in the commission of the offense (§ 12022,
subd. (b)(1)).
On September 3, 2010,
defendant’s competency, and criminal proceedings were suspended. On October 7,
2010, the court found defendant competent to stand trial. On March
9, 2011, the jury found defendant guilty of first degree murder and
found the weapon enhancement true. In a
bifurcated proceeding, the jury found defendant legally sane during the
commission of the murder. The
prosecutor’s motion to strike the prior prison term enhancement was granted,
and defendant admitted the prior serious felony conviction.
On May 13, 2011, the court
sentenced defendant to a prison term of 25 years to life and doubled the
sentence pursuant to the three strikes law.
The court sentenced defendant to a consecutive term of one year for the
weapon enhancement, for a total sentence of 51 years to life.
FACTS
A. Guilt Phase of Trial
Discovery of Murder
On May 16, 2009 between 4:00 and 5:00
p.m., Joaquin Rivera, who was working as a crisis nurse at the Marie
Green Psychiatric Hospital
(hospital), heard defendant pounding on the door to the back entrance of the
hospital.
standing outside with a laceration to his left forearm. Rivera called 911. Police and emergency medical services with an
ambulance responded. Defendant said he
cut himself with a razor. Rivera found a
razor blade next to the back entrance of the hospital. Rivera described defendant’s laceration as
being a few centimeters or an inch.
Defendant
told Rivera he did something horribly wrong, that he hit Roger Burnett in the
head with a hammer and stabbed him.
Burnett had been a patient at the hospital. Defendant also said he stabbed Burnett and
hit him in the head with a hammer because Burnett did not want defendant to
spend the night in his residence.
After
defendant was taken to the emergency room, Rivera went to Burnett’s home. Rivera knocked on the door but did not go
inside when no one responded. Rivera
called his supervisor and then the police department. Rivera had seen defendant as a patient at the
hospital three or four times in the past.
Officer
James Lodwick of the Merced Police Department was dispatched to the psychiatric
hospital on May 16th at 4:24 p.m. Lodwick overheard defendant telling Rivera he
may have hurt a friend with a knife or a hammer and also that he, defendant,
may be hallucinating. Defendant was
transported to the emergency room next to the psychiatric hospital, and Lodwick
filed a 72-hour hold to evaluate defendant’s mental health pursuant to section
5150 of the Welfare and Institutions Code.
Lodwick drove to Burnett’s residence where he saw an officer outside
talking to Rivera.
Lodwick
knocked on the door a few times, announced who he was, and checked the door; it
was unlocked. Lodwick opened the door
and again announced who he was before stepping into the house. Lodwick saw Burnett lying in a large pool of
blood, shirtless, with multiple stab wounds to his back. Lodwick told the officer to secure the house
until homicide detectives could arrive.
First Interrogation
Detectives
Keith Pelowski and Hector Ortiz questioned defendant at the police station at
8:45 p.m. on May 16th.
name="_ftnref3" title="">[3] The questioning was recorded and a redacted
version was played to the jury.
Defendant was questioned again on May 19th, three days after his
arrest. The jury again listened to a
redacted recording of the questioning.
Defendant’s account of how he killed Burnett changed as he added to the
details of events as he was questioned.
Prior to
receiving Miranda
feeling suicidal and just wanted to do himself in. Defendant asked if he would be going to the
psychiatric hospital and stated that he had been to the psychiatric hospital. Defendant said he cut his arm four inches deep
with a razor blade in the parking lot of the psychiatric hospital. Defendant said he thought he might have hurt
real bad a guy he had known for years.
Defendant
said he had met Burnett at a day treatment center in the ’80’s, that they had
known each other for 20 years. Defendant
said Burnett was a good guy and that Burnett’s father had given Burnett the
house on Main Street where Burnett lived.
Defendant had been in that house the prior evening lying on the couch.
Defendant
was then advised of his Miranda
rights and said he understood them.
Ortiz invited defendant to talk about his friend. Defendant explained that he met Burnett at a
Starbucks the day before. When asked to
be chronological in his account, defendant said he was at the psychiatric hospital
at 3:00 or 4:00 p.m. Without a question
from the detectives, defendant said: “I think I stabbed him way before I even
thought about going to the hospital. I
stabbed him and I hit him in the head with a damn hammer. I’m not going to lie to you.†Defendant explained that he was hearing
voices and was out of control. Defendant
said this happened at Burnett’s home.
When asked
what he used to stab Burnett, defendant replied that he first used a long
knife, then a short, little knife, and then he “took a big ‘ole hammer and I
hit him in the ba-… in the head several times.â€
Defendant explained that this was why he wanted to kill himself. Defendant said he had not planned to do this.
Defendant
elaborated on his attack, explaining that they were sleeping in Burnett’s
living room: he on one couch and Burnett
on another couch. Defendant pulled out a
knife, started thinking, and stabbed Burnett in the chest once. Burnett sat up, and defendant hit him with
the hammer. Defendant stabbed Burnett
four or five times in the chest and three times in the side before trying to
cut Burnett’s throat. Burnett began to
make gurgling sounds, so defendant stabbed him in the back and hit him in the
head “a couple more times.†Defendant
thought the knives were still in Burnett’s body because defendant tried but
could not remove them.
Defendant
said he left the house, walked to the hospital, tried to get his antacid
medication, and went back to Burnett’s house.
Defendant opened the door, turned the light on, “lost it,†and then
began to cry, and cry, and cry.
Defendant told the detectives that he should not have done this to
himself because Burnett was a good friend.
Defendant said he felt no remorse for his actions. Defendant could not explain why he committed
the offense, but said sometimes he has demons and needs medications and
observation at the psychiatric unit.
Defendant
told the detectives he has been in the mental health system since 1969, after
he got shot in the back. Defendant
suffered a nervous breakdown and began hearing voices. According to defendant, Burnett put him up
the first night and it was the second night when “it all went down.†Defendant had spent two days at Burnett’s
home, “just kicking back, drinking coffee, smoking cigarettes.†Because he did not have enough money,
defendant did not fill prescriptions for his medications. Defendant said he was off of his medications
for a day.
Prior to
the attack, Burnett had been snoring on the couch. This was when defendant first picked up a
knife and stabbed Burnett in the chest.
Burnett lunged at defendant, who then “nailed him with the hammer.†Defendant said he was having weird thoughts
about what it would be like to kill someone.
Pelowski asked defendant when was the last time he thought about what it
would be like to kill someone. Defendant
replied it was when “people would get me pissed off I guess.†Although defendant said he stabbed Burnett
because he “just stabbed him,†defendant also admitted this was the first time
that someone “pissed†him off to the point where he wanted to kill the person.
Defendant
explained that Burnett pissed him off because he was sleeping and did not say
anything. In the past, Burnett had
nagged defendant to pay back a friend $15 that defendant owed to her. Defendant then said he was not actually angry
at Burnett. Defendant simply wanted to
stab Burnett and was not “pissed†off at him.
Defendant had “mixed thoughts†and his mind was racing. So defendant acquired the knife and hammer.
Defendant
got the knife from the kitchen and grabbed the hammer from the ledge of the
television and placed them on the couch right next to himself so that he could
grab the hammer and strike Burnett.
Defendant brought the hammer with him because he was worried that Burnett
would jump up after being stabbed.
Defendant used the hammer after stabbing Burnett because he was not sure
Burnett was dead. After hitting him in
the head several times with the hammer, defendant pushed Burnett off the couch
to the floor and hit him in the back of the head with the hammer. Defendant washed the hammer in the kitchen
sink.
When
defendant last took medication, he used Ativan, which he takes to control panic
attacks.
years. Defendant received more Ativan
from the emergency room doctor who sewed his arm prior to being questioned by
detectives.
Defendant
reiterated his earlier statement that he did not know why he killed
Burnett. When asked if he knew what he
did was wrong, defendant replied, “Yeah.
I do. [¶] … [¶] … I
wasn’t thinking but I knew it was be [sic]
bad.†When asked what defendant thought
would happen to him, he replied, “Probably ending up going to the death
penalty.†Defendant knew that stabbing
Burnett with a knife and hitting him in the head with a hammer would cause
Burnett “to die.†Defendant said he did
not really want to kill Burnett the first time he stabbed him and hit him in
the head with a hammer, but he just “kept on going†and could not stop
himself. At the end of the interview,
defendant said a prayer, seeking forgiveness from God “for killing [his] friend
Roger.â€
Second Interrogation
On May
19th, Detectives Ortiz and Pelowski conducted a second interrogation of
defendant, beginning with a full advisement of Miranda rights. Defendant
again explained how he was shot in the back when he was 17, suffered a nervous
breakdown, began to hallucinate, went to Napa State Hospital, and began taking
medications for his mental health issues.
Defendant told the detectives that he took lithium, Artane, Mellaril,
and Thorazine. Defendant also recounted
how he had overdosed on Ativan and was hospitalized prior to killing Burnett.
The first
night at Burnett’s house, everything was fine and defendant fell asleep. Defendant returned to Burnett’s home around
9:00 or 10:00 and stayed a second evening.
At Burnett’s home, defendant was lying on the couch. Defendant blanked out, but then went to get a
knife from the kitchen. The hammer was
in the living room on a ledge where the television was located. Defendant placed the hammer on the couch,
stabbed Burnett, Burnett jumped up, and defendant hit him five or six times
with the hammer. Defendant said he
shoved Burnett off the couch and hit him in the back of the head a couple of
times. The knife was embedded in Burnett
and defendant could not remove it.
Defendant thought he may have also stabbed Burnett with the little
knife. Defendant said they had not been
drinking or using drugs the night that Burnett died.
After
killing Burnett, defendant said he went to the hospital to get medicine for his
acid reflux problem. He then bought a
cup of coffee. Defendant said he cut his
arm while just a few feet away from the back door of the psychiatric
hospital. Defendant went back to
Burnett’s home. When he put his hand on
Burnett’s body, he knew Burnett was dead.
Defendant took a bus to Yosemite.
There, he went to the Cedar Lodge and bought a pack of cigarettes and a
Heineken beer. Defendant said he also
purchased a small pocket knife for $9.
Defendant returned from Yosemite around 4:00 p.m. Defendant had about $85 or $90.
Defendant
again stated that he did not know why he attacked Burnett. He said he was not planning to kill Burnett
and had no idea “why on earth†he did it.
When asked what he thought would happen to Burnett if he stabbed him,
left the knife in him, and gave Burnett all of those injuries, defendant
replied that it would “[k]ill him,†“cause death.†Defendant did not know if Burnett’s snoring
actually bothered him. Defendant felt
that Burnett always “looked down on everybody.â€
Defendant said that 90 percent of Burnett’s life was spent “on the couch
in the prone position.†Defendant told
detectives that Burnett had no life and never did anything.
Defendant
then gave another explanation of events after the killing. In this version, after killing Burnett,
defendant purchased coffee and went to Wal-Mart. Defendant bought a pocket knife at Wal-Mart
and trail mix and chips from the 99 Cents Store. He then took a bus to Yosemite, hitchhiked
back to Merced, and bought razor blades at a local liquor store prior to
cutting himself at the psychiatric hospital.
Defendant
told the detectives that he did not feel suicidal when he went to the
psychiatric hospital. He “just wanted to
get some kind of attention so I could explain what the fuck happened, you
know.†Defendant reiterated during
questioning that he was not suicidal but wanted to get attention so he could
turn himself in for what he had done.
Defendant said he cut himself as a way of letting people know what he
did.
Defendant
thought if Burnett was found dead by a relative, there would be a manhunt and
it was likely that he would be shot.
Defendant thought he did the right thing by telling someone what he did
and by confessing his crime. Defendant
denied knowing that Burnett had any money even though Burnett’s sister told
detectives that Burnett had just cashed a check from his conservator.
Other Evidence
A deputy
coroner located Burnett’s wallet. It
contained a driver’s license, AutoZone and NRA membership cards, and no
money. According to Burnett’s sister,
Judith Burnett, Burnett had received his house from their father’s estate. Ms. Burnett had recently loaned her
brother $5. On May 15th, Burnett tried
to repay his sister but she did not accept his money. Ms. Burnett explained that Burnett
received social security and disability payments. Burnett received weekly allowances from the
public conservator’s office. The public
conservator paid Burnett’s utility, tax, and insurance bills.
Ms. Burnett
was given Burnett’s wallet recovered from the crime scene. It had no money. The last time Ms. Burnett saw her
brother alive was on May 15th at 4:30 p.m.
She had never seen defendant before.
Ms. Burnett never found any cash or a check from Burnett’s
conservator in the house. The parties
stipulated to the admission of a copy of a check from the Merced County Public
Conservator made out to Roger Burnett in the amount of $100 that was endorsed
by Burnett and stamped by CitiBank with a date of May 15, 2009.
Dr. Ikechi
Ogan, a forensic pathologist, performed an autopsy on Burnett. Burnett suffered multiple wounds to both
lungs, stomach, intestines, liver, diaphragm, spleen, and pectoral chest
muscles. There were 400 cc’s of blood in
either chest space and 500 cc’s of blood in Burnett’s abdomen. The only major organ not punctured was
Burnett’s heart.
Three
wounds on Burnett’s back caused puncture wounds to his diaphragm and
liver. A long household kitchen knife
was embedded in Burnett’s neck, four and a half inches above the clavicle. This lethal stab wound transected the carotid
artery and jugular vein. The tip of the
knife was difficult to remove because it went deep into a vertebra, causing
that vertebra to fracture. There were
three other sharp force injuries to Burnett’s neck. One of these wounds punctured the
trachea. A screwdriver found in the home
next to Burnett’s head could have caused the neck injuries.
There were
lacerations and fractures to Burnett’s head, with visible fragments of brain
tissue and blood oozing out. Burnett’s
nose was broken and there were bleeding points, petechiae, in both eyes caused
by an increase in blood pressure. This
is typically found where there is manual strangulation. Dr. Ogan stated that the cause of death
was blunt impact head trauma and multiple stab wounds.
DNA
evidence collected from a ball-peen hammer recovered at the crime scene
contained alleles from defendant and Burnett.
A small wood-handled knife that was on the kitchen counter and a large
kitchen knife removed from Burnett’s body during the autopsy also contained DNA
from defendant and Burnett. Defendant’s
backpack, booked into evidence at the May 16th interview, contained socks,
sunglasses, a lighter, matches, a couple of receipts from Wal-Mart, chips, and
trail mix.
Diminished Capacity Defense
Richard A.
Blak, Ph.D., evaluated defendant prior to trial to determine whether he was
sane and testified at the guilt phase of trial as to defendant’s mental health
history. Dr. Blak testified that
prior to meeting defendant, he reviewed defendant’s medical records regarding
his mental health issues as well as the police reports concerning the current
allegations. Dr. Blak questioned
defendant about his education, family life, and use of drugs and alcohol to
determine his psychological function.
Defense
exhibit 201 was a medical record that showed defendant was admitted to Napa
State Hospital in April 1969 and discharged in September 1970.
the victim of a gunshot wound as an adolescent, defendant began to exhibit
psychiatric symptoms such as hallucinations, anxiety, agitation, and a fear he
might jump out of the window of his home.
These symptoms were consistent with the psychotic disorder,
schizophrenia. Among the symptoms of
schizophrenia are withdrawing from society, hearing voices, having delusionary
or false beliefs, and having disturbed thinking.
Defendant
was placed on antipsychotic medication and tranquilizers. He received individual and group
therapy. Defense exhibit 202 comprised
records from Napa State Hospital showing defendant’s admission between January
1971 and September 1971 after defendant experienced a great deal of suicidal
ideation and engaged in suicidal gestures.
This event was another psychotic break.
Defense
exhibit 203 was another medical record from Napa State Hospital showing
defendant was admitted between July 1972 and August 1972. Defendant acknowledged using controlled
substances such as marijuana, cocaine, LSD, and heroin. These drugs can act as destabilizers and
exacerbate a patient’s symptoms.
Defendant was treated with lithium carbonate, a mood stabilizer, and
tranquilizers. He was stabilized and
released within a month.
Although these
records were 40 years old, Dr. Blak explained that defendant’s mental
health problems have persisted.
Defendant was admitted to the Marie Green Psychiatric Hospital several
times between 1999 and 2009, usually because of suicidal ideation. Defense exhibit 204 covered the chronological
period of 1999 through 2008 at the psychiatric hospital. This exhibit was a summary of admission dates
with the reason for each admission.
Typically,
defendant would present himself with a fear of harming himself, or he would
have attempted to overdose on Ativan or another tranquilizer along with
alcohol. His behavior supported a
history of chronic alcoholism.
Dr. Blak’s interpretation was that defendant was “very fragile in
terms of his mental stability†and required assistance from community mental
health programs on an ongoing basis.
In
Dr. Blak’s opinion, defendant continued to suffer schizophrenia. The staff of the psychiatric hospital saw
defendant as having a mood disorder and focused on his depression, suicidal
ideation, and use of alcohol.
Dr. Blak did not think the treatment defendant received was, in
itself, effective in treating schizophrenia.
Dr. Blak
noted that defendant was at times oppositional and not always the best
patient. Although he was referred for
further services, defendant did not always follow up. Dr. Blak did not see the records from
Napa State Hospital as being consistent with the local psychiatric
hospital. Although defendant denied
auditory hallucinations, they have persisted throughout his lifetime. Defendant continued to be very impulsive and
engaged in at-risk behaviors.
Dr. Blak thought that the psychiatric hospital was trying to
prevent defendant from being suicidal, but did not treat his
schizophrenia. He explained that a person
could engage in overkill behavior—continuing to attack a victim when there was
no longer a need to—because the person “get[s] into perseveration.†Defendant told Dr. Blak that he had
auditory hallucinations before killing Burnett.
Dr. Blak
acknowledged there were numerous occasions when defendant sought attention
after reporting suicidal ideation and was subsequently classified by workers
and doctors as a manipulator.
Dr. Blak explained that even though defendant has manipulated the
system and “embellished†by threatening suicide, defendant still had a “severe
mental disorder in the form of psychosis or schizophrenia.†Dr. Blak thought defendant was not
trying to kill himself when he cut his forearm, but only looking for
attention. Dr. Manolito Castillo at
the psychiatric hospital gave defendant a diagnosis of schizoaffective disorder
in October 2008. This illness is a
combination of a thought disorder and mood a disorder. People with this illness act impulsively and
perceive things in a distorted fashion.
B. Sanity Phase of Trial
Prosecution Experts
Dr. Philip
S. Trompetter, a clinical
psychologist specializing in police and forensic psychology since 1978,
testified for the prosecution during the sanity phase of trial. Dr. Trompetter reviewed the original
crime report, reports from Drs. Blak and Andrew Neufeld, recordings of
defendant’s interrogations, and defendant’s mental health records dating back
to 1969. Dr. Trompetter met with
defendant for two and a half hours in April 2010 at the Merced County
jail. Defendant was taking Effexor, an
antidepressant medication, at the time Dr. Trompetter was meeting with
him.
Defendant
discussed being the victim of a
or 17 years old. Defendant believed this
was a triggering event for his mental health problems. Defendant reported having a seizure while
withdrawing from Klonopin, an antianxiety medication, in 2004.
Dr. Trompetter
noted that while at Napa State Hospital, defendant was diagnosed with
schizophrenia and received antipsychotic medications between 1969 and 1972 or
1973. Defendant was never again
prescribed an antipsychotic medication.
After being a patient at Napa State Hospital, the medications prescribed
to defendant were either antidepressant or antianxiety medications. This suggested to Dr. Trompetter that
the primary symptoms being observed by treating professionals were depression
and anxiety, and defendant was not viewed as having a psychotic disorder.
Dr. Trompetter
explained that psychotic symptoms can support a severe enough disorder on which
to base a plea of not guilty by reason of insanity. Hallucinations, which are false perceptions
like hearing or seeing nonexistent things, are associated with delusions. One common delusion is when a person believes
that someone is trying to kill, harass, or poison him or her. There are grandiose delusions such as
believing one is a celebrity or a family member of Bill Gates. Dr. Trompetter found no mention of
hallucinations or delusions in defendant’s past medical records after he left
Napa State Hospital in 1973, and defendant was never treated for such symptoms.
The only
mention of auditory hallucinations in defendant’s medical records occurred in
1969 when he was 17 years old. But after
killing Burnett, defendant suddenly said he was experiencing auditory
hallucinations. Dr. Trompetter
found this assertion to be self-serving, potentially manipulative, and not
credible. Mental disorders do not
typically appear suddenly in people who are defendant’s age, especially because
defendant did not have any accompanying symptoms one would expect to occur with
hallucinations.
Dr. Trompetter
elaborated that usually when someone is having a hallucination, they do not use
the word hallucination. Someone
experiencing a hallucination actually believes that what he or she sees or
hears is real. For this reason, forensic
examiners are suspicious when someone reports that he or she is having a
hallucination. A person hearing a voice
acts distracted by what he or she perceives as someone else talking and may
look back to see the source of the voice.
Dr. Trompetter
explained that defendant had spent a great deal of time in mental health
facilities. If someone wanted to
malinger a mental illness, a place to learn how to mimic psychiatric symptoms
is from being around psychiatric patients in a psychiatric hospital. The only medication defendant had been taking
was Ativan, an antianxiety medication.
Defendant was not intoxicated so there was no good reason for him to be
so vague in describing the events of May 16th. When Dr. Trompetter sought more specific
responses from defendant about what happened, defendant would respond that he
was hearing voices.
Dr. Trompetter
did not believe defendant experienced a hallucination but that he malingered or
faked a psychotic symptom; there was no evidence to support defendant’s
credibility. Dr. Trompetter did not
think defendant had a severe mental disorder other than being chronically
depressed and anxious. According to
Dr. Trompetter, chronic depression and anxiety “rarely, if ever, form the
basis for a meritorious plea of not guilty by reason of insanity.†Dr. Trompetter thought defendant
understood the nature and quality of his actions.
The fact
that defendant cleaned blood off a weapon was an attempt to hide evidence. Implied in that is the knowledge the person
knew what he or she did was wrong.
Dr. Trompetter explained that people who are really mentally
disordered do not understand what they are doing at the time of the crime and
are surprised when they are arrested.
When defendant cut his forearm and presented himself at the psychiatric
hospital, he understood both the legal and moral wrongfulness of his conduct in
killing Burnett.
Dr. Trompetter
believed that Dr. Robert Forrest incorrectly diagnosed defendant with
schizophrenia at Napa State Hospital in 1969 because schizophrenia is a chronic
condition, and defendant never displayed the symptoms of schizophrenia
following his hospitalizations in Napa.
Dr. Neufeld, a clinical psychologist who also evaluated defendant’s
sanity, did not think defendant’s symptoms supported a diagnosis of a psychotic
disorder.
Defense Expert
Dr. Blak
was recalled as a defense expert for the sanity phase of the trial. Dr. Blak read the medical reports from
Napa State Hospital, the emergency room at Mercy Hospital, and the psychiatric
hospital. Dr. Blak had read
information stating that defendant was malingering or faking symptoms prior to
forming his opinion of defendant’s mental state and they did not have any
significant effect on Dr. Blak’s opinion.
Part of
defendant’s Axis II diagnosis was borderline personality disorder, which creates
a pervasive pattern of instability, particularly in personal
relationships. It also causes
impulsivity, a pattern of unstable functioning, and suicidal ideation and
gestures that can be manipulative. One
can have this disorder along with schizophrenia.
Defendant’s
diagnosis at Napa State Hospital from Dr. Forrest was schizophrenia,
chronic undifferentiated type.
Dr. Blak reviewed reports from Drs. V. T. Hammond, Jr.,
O. C. Helming, Jr., and Ernest Belden.
Dr. Belden had described defendant’s schizophrenia as latent. Dr. Blak thought that after receiving
major treatment at Napa State Hospital, defendant had some form of partial
remission but his mental illness never went away.
Dr. Daisy
Ilano from the psychiatric hospital diagnosed defendant in January 2004 with
the relatively benign conditions of adjustment disorder, depressed mood,
alcohol dependency, and antisocial personality disorder. Dr. Blak stated that patients who are
placed on 72-hour holds at local psychiatric facilities are in places that are
understaffed, underfunded, and tend to focus on obvious threats like suicide
attempts. These facilities will refer
patients for further services, but the focus is on preventing patients from
hurting themselves.
Other
doctors at the psychiatric facility also diagnosed defendant. In October 2006, Dr. Isabel Manuel
diagnosed defendant with depressive disorder with recurrent and severe
psychotic features. In October 2008, Dr.
Castillo diagnosed defendant with schizoaffective disorder, a diagnosis that
Dr. Blak said overlapped with his own diagnosis. There was also a gap in defendant’s medical
records for about 10 to 11 years when defendant lived in Santa Barbara County.
Defendant’s
statement to detectives that he did not mean to harm Burnett was inconsistent
with his having stabbed Burnett 21 times.
Dr. Blak stated this tells him that defendant was unable to
understand the nature and consequences of his actions. Because there was no confirmation that he
went to Yosemite, Dr. Blak believed defendant may have been mistaken,
which showed defendant’s difficulty in grasping reality. Defendant said he blanked out and this may be
an indication that defendant did not understand the nature and quality of his
actions.
Dr. Blak described defendant’s
embellishment as part of his mental confusion, leading him to believe that
defendant’s schizophrenic disorder continued to be part of his psychology. A person can have goal-oriented behavior and
still be delusional. Dr. Blak knew
of cases where people had used a knife or another weapon against someone they
perceived as a threat and then failed to associate their responsibility for
harming that other person. In such
cases, the person did not realize what he or she was doing was a consequence in
a fatal outcome.
In
Dr. Blak’s opinion, if a person has a paranoid delusion that a friend is a
threat and going to kill him, and he proceeds to kill the friend and then feels
badly about it, that person would be not guilty by reason of insanity. Dr. Blak conceded that a person could
suffer schizophrenia, commit a crime, and still be sane.
I. Substantial
Evidence of Deliberation and Premeditation
Introduction
Defendant contends there was
insufficient evidence of deliberate and premeditated murder, and his conviction
for first degree murder must be reversed.
Defendant argues there was no motive for the lethal attack, and the
preparation for the attack showed nothing more than defendant’s delusional
state. Defendant asserts that the very
savagery of the attack discounts any idea that he acted with premeditation and
deliberation.
Substantial Evidence
In
assessing a claim of insufficiency of evidence, the reviewing court’s task is
to review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—evidence that is reasonable,
credible, and of solid value upon which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
The standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence.
It is the jury, not the appellate court, which must be convinced of a
defendant’s guilt beyond a reasonable doubt.
If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the
judgment. (People v. Rodriguez
(1999) 20 Cal.4th 1, 11; see also Jackson
v. Virginia (1979) 443 U.S. 307,
317-320; People v.
In
reviewing a challenge to the sufficiency of the evidence, appellate courts do
not determine the facts. We examine the
record as a whole in the light most favorable to the judgment and presume the
existence of every fact the trier of fact could reasonably deduce from the
evidence in support of the judgment. (
If the verdict is supported by substantial evidence, a reviewing court
must accord due deference to the trier of fact and not substitute its
evaluation of a witness’s credibility for that of the fact finder. (People
v. Ochoa (1993) 6 Cal.4th 1199,
1206.) Unless the testimony of a single witness is physically impossible or
inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34
Cal.4th 1149, 1181.)
An
appellate court must accept logical inferences that the jury might have drawn
from circumstantial evidence. (
Before the judgment of the trial court can be set aside for
insufficiency of the evidence, “it must clearly appear that on no hypothesis
whatever is there sufficient substantial evidence to support the verdict of the
jury.†(People v. Hicks (1982)
128 Cal.App.3d 423, 429; see People v.
Conners (2008) 168 Cal.App.4th 443,
453.)
Deliberation and Premeditation
Murder is
the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a), People v. Chun (2009) 45
Cal.4th 1172, 1181.) As noted in
can be shown by evidence of planning activity, motive, and the manner of the
killing. Anderson, however, does not require these factors be present in
some special combination or that they be accorded a particular weight, nor is
the list exhaustive.
appellate court’s assessment whether the evidence supports an inference that
the killing occurred as the result of preexisting reflection rather than rash
impulse. (People v. Bolin (1998) 18
Cal.4th 297, 331-332; People v.
A verdict
of deliberate and premeditated first degree murder requires more than a showing
of intent to kill. Deliberation refers
to careful weighing of considerations in forming a course of action. Premeditation is thinking matters over in
advance. The process of premeditation
and deliberation does not require an extended period of time. The true test is not the duration of time as
it is the extent of reflection. Thoughts
may follow each other with great rapidity and cold, calculated judgment can be
arrived at quickly. (
Malice may
be express or implied. It is express
when there is manifested a deliberate intent to unlawfully take away the life
of another person. It is implied when no
considerable provocation appears, or the circumstances attending the killing
show an abandoned and malignant heart.
The California Supreme Court has interpreted implied malice as having
both a physical and mental component.
The physical component is satisfied by the performance of an act in
which the natural consequences are dangerous to life. The mental component is the requirement that
the defendant knows his or her conduct endangers the life of another and then
acts with a conscious disregard for life.
(People v. Chun,
Discussion
Defendant
argues that the very savagery of the attack means he could not have acted with
deliberation and premeditation.
In
analyzing whether defendant had the requisite intent to commit first degree
murder, we must draw every inference that supports the judgment. Viewing defendant’s two interrogations
together, there were several things he said that collectively or alone indicate
a motive to kill Burnett. It is clear
that defendant did not like Burnett because he thought Burnett “looked down on
everybody.†Defendant felt Burnett never
did anything and spent most of his life on the couch. Nurse Rivera overheard defendant say he was
angry at Burnett for not letting him stay another evening at his house. There was also evidence at trial that Burnett
had just cashed a check from the public conservator and received $100 in cash
on Friday, May 15th. The jury could
reasonably infer that defendant killed Burnett to steal his money.
Defendant
said he knew what he was doing was bad and that it would cause Burnett to
die. When asked if he knew what he did
was wrong, defendant replied, “Yeah. I
do. [¶] … [¶] … I wasn’t
thinking but I knew it was … bad.â€
Although defendant denied being angry at Burnett, he also said this was
the first time in his life that someone “pissed†him off enough to the point
where he wanted to kill, and he later referred to Burnett’s snoring.
Defendant
formulated a plan to kill Burnett.
Defendant got a knife from the kitchen, then grabbed the hammer from the
ledge of the television in the living room and placed it on the couch right
next to himself so that he could just grab the hammer and strike Burnett. Defendant brought the hammer with him because
he was worried that Burnett would jump up after being stabbed. Defendant used the hammer after stabbing
Burnett because he was not sure Burnett was dead.
Defendant’s
crime was not a spontaneous moment of derangement. Defendant had to collect weapons from two
different locations before he attacked Burnett.
Defendant acted in a coolly calculated and preplanned manner prior to
delivering the first blow with a knife, and then to follow through with a
hammer in the event the victim jumped up.
Defendant admitted to the detectives that he both understood his actions
would kill Burnett and that they were wrong.
The jury could reasonably conclude that the killing was based on
preexisting reflection rather than an unconsidered or rash impulse.
v. Bolin, supra, 18 Cal.4th at
pp. 331-332.) We conclude there was
substantial evidence that defendant’s killing of Burnett was an intentional,
premeditated, and deliberate act.
II. Knowing and Voluntary Waiver of Miranda
Rights
Introduction
Defendant contends that his
statements to the interrogating detectives must be excluded as involuntary
because he could not have made a knowing and intelligent waiver of his rights
given his diminished mental state.
Defendant argues that because of his mental condition, the fact he was a
regular mental patient at the psychiatric hospital, and he had just slashed his
forearm, that he was vulnerable to coercive interrogation, and the detectives
took advantage of his confused mental state.
Defendant also argues the prewaiver statements he made on May 16th
should have been excluded. We disagree.
On May
16th, defendant was brought to the police station for questioning. Prior to giving defendant his
that defendant was being questioned because he had earlier made statements
concerning doing something to a friend.
Defendant stated he felt suicidal, wanted to do himself in, and might
have hurt Burnett “real bad.†When asked
if he might have killed Burnett, defendant replied affirmatively. Defendant said he needed a psychiatric
evaluation. Questioning was stopped and
defendant was given Miranda
advisements. During the interrogation,
defendant indicated in the middle of the questioning that he needed to go the
hospital. He was told he could go soon.
Prior to
trial, defense counsel brought a motion to
suppress defendant’s statements.
Counsel argued that defendant had gashes in his arms trying to take his
own life and was not in a right state of mind.
The trial court listened to the recordings of both confessions and found
that defendant made no bizarre responses, was responsive to questions, exhibited
no delusional behavior, and his self-inflicted injury turned out to be
superficial. The court found no
indication that defendant’s ability to understand and respond to questions had
been affected, and his statements were made voluntarily.
The court
further found that defendant’s ability to comprehend and recollect events, his
ability to correct detectives whenever they discussed his medication or the
chronology of events or how weapons were used demonstrated that his statements
were voluntarily made. The court found
that defendant’s pre-Miranda
statements were volunteered by him as Detective Ortiz was trying to get some
preliminary information and were knowingly made with full understanding of what
he was doing. The court further found no
evidence of improper police activity nor evidence of any plan to soften up
defendant by obtaining information prior to giving Miranda warnings. The court
found no evidence of a mental disorder that would impair defendant’s ability to
make a knowing and intelligent waiver of his rights. The court denied defendant’s motion.
Prior to
trial, defense counsel advised the court that he wanted all of the
May 16th interrogation played for the jury, including the pre-
some information in those statements counsel believed was relevant as to
whether defendant’s offense was first or second degree murder. With regard to the pre-Miranda statements made by defendant,
waiving any challenge to Miranda for
purposes of appeal.
Discussion
To protect
the Fifth Amendment privilege against self-incrimination,
a person must first be advised of the right to remain silent, to the presence
of counsel, and to appointment of counsel, if indigent. Police are free to interrogate a suspect as
long as the suspect knowingly and intelligently waives these rights. Questioning must cease if the suspect invokes
his or her rights at any time during the interrogation. Statements obtained in violation of
waived, the suspect must unambiguously assert his or her right to silence or
counsel. (People v. Stitely (2005)
35 Cal.4th 514, 535.)
A
confession is involuntary if it is the result of coercive police activity. The test is whether the defendant’s will was
overborne. (People v. McWhorter
(2009) 47 Cal.4th 318, 346-347; People v.
Mays (2009) 174 Cal.App.4th 156,
164.) A suspect’s will can be overborne
if he or she was being threatened, the statement was obtained by direct or
implied promises, or the statement was in any way involuntary. (People
v. McWhorter, supra, at p.
347.) Under both state and federal law,
courts apply the totality of the circumstances test to determine whether a
statement is voluntary. Among the
factors courts consider are police coercion, the length of the interrogation,
its location and continuity, the defendant’s physical condition, and his or her
mental health. (People v. Massie (1998)
19 Cal.4th 550, 576.)
Even when
an initial statement is taken in the absence of proper Miranda advisements and is incriminating, if the initial statement
was voluntary, a subsequent voluntary confession is not ordinarily tainted
simply because it was procured after a Miranda
violation. Absent actual coercion or
other circumstances calculated to undermine a suspect’s ability to exercise his
or her free will, a Miranda
violation, including an inculpatory statement, does not so taint the
investigatory process that a subsequent voluntary and informed waiver is
ineffective. The relevant inquiry is
whether the statement was voluntarily made.
(People v.
The scope
of appellate review is well established.
We accept the trial court’s resolution of disputed facts and inferences
and its evaluations of credibility if substantially supported. (People
v. Bradford (1997) 14 Cal.4th
1005, 1033.) Reviewing courts
independently determine from the facts properly found by the trial court
whether the challenged statement was illegally obtained. (People
v. Massie, supra, 19 Cal.4th at
p. 576; People v. Bradford,
Defendant’s
pre-Miranda statements on May 16th
were not challenged by defense counsel because counsel believed there were
exculpatory statements that could have mitigated the offense to second degree
murder.
defendant were not the result of intense police questioning but were made
voluntarily by defendant as the detectives were asking other preliminary
questions.
Because
defendant’s initial statements on May 16th were preliminary in nature, we
do not find that the police detectives engaged in an impermissible two-step
interrogation to intentionally withhold a Miranda
advisement to obtain a confession. (See
There is no indication in the transcript that defendant’s will was
overborne or that he was incapable of talking to the detectives. Under the facts of this case, defendant’s
pre-Miranda statements could be
admitted into evidence. (
Defendant’s
comments that he needed psychiatric
evaluation and needed to go to the hospital could be problematic, but would
be so in the context of other evidence that defendant was delusional,
incoherent, could not think logically, or was unable to understand the
detectives’ questions. Prior to his
first interrogation, defendant had been brought to the hospital for treatment
for his self-inflicted wound and was not questioned by police until after he
was released from the hospital. No one
who observed defendant from the time he arrived at the psychiatric hospital, or
thereafter, described him as being disoriented or delusional.
The trial
court did not find that defendant was delusional, incoherent, illogical, or
unable to understand the detectives’ questions in either interrogation.
self-inflicted wound proved to be superficial.
The court further found that defendant was rational and made a knowing
and intelligent waiver of his Miranda
rights. We find nothing in the record to
cast doubt on the trial court’s factual findings or its legal conclusions.
The People
note there was no indication the interrogation was conducted in an oppressive
or coercive manner. The detectives never
threatened defendant. Defendant was
offered a cigarette break. He was
offered water more than once. Defendant
was asked if he was hungry. Immediately
after receiving Miranda advisements
on May 16th, Detective Ortiz simply asked defendant to talk about his
friend. In sum, we reject defendant’s
contentions that the trial court erred in denying his motion to suppress his confessions.
III. Inadmissible Hearsay Evidence
Defendant
argues that the entire guilt phase of trial rested on his effort to create
reasonable doubt that he premeditated and deliberated Burnett’s murder. Although defense expert Dr. Blak
testified concerning defendant’s mental state, the underlying medical reports
upon which he based his expert opinion were not admitted into evidence. Defendant contends he was denied a fair trial
because the jury was not allowed to review the medical reports underlying Dr. Blak’s
opinion. We agree with the People that
the underlying medical reports were inadmissible hearsay, and, in any event,
the relevant substance of those reports was conveyed to the jury through
Dr. Blak’s testimony.
During a
pretrial proceeding, the parties agreed that defendant’s medical records,
relied upon by all of the experts, were true and correct records and stipulated
as to their authenticity. Defendant
waived any confidentiality in his medical records. Defendant’s medical record from Napa State
Hospital was apparently displayed on a projector. The court advised the jury the records were
being shown for the limited purpose of the basis for the expert’s opinion. Defendant’s medical records were excluded as
evidence because the jury would tend to consider them for the truth of matters
contained within them. Defense counsel
acquiesced in the trial court’s ruling without objection.
An expert
may render opinion testimony on the basis of facts given in a hypothetical
question. The hypothetical question
should be rooted in the facts as shown by the evidence. Expert testimony can also be premised on
material that is not admitted into evidence if it is of a type that is
reasonably relied upon by experts in a particular field in forming their opinions. The information must be reliable. The expert can also rely upon opinion and
matter that would otherwise be considered inadmissible. (People
v. Gardeley (1996) 14 Cal.4th
605, 618.)
A trial
court has considerable discretion to control the form in which the expert is
questioned to prevent the jury from learning of incompetent hearsay. The trial court also has discretion to weigh
the probative value of inadmissible hearsay evidence that is relied upon by an
expert against the risk a jury might improperly consider it as independent
proof of the facts set forth in the hearsay evidence. An expert’s recitation of sources he or she
relied upon does not transform inadmissible matter into independent proof of
any fact. (People v. Gardeley, supra,
14 Cal.4th at p. 619.) Although it is
appropriate for a physician to base his or her opinion in part on the opinion
of another physician, generally it is not appropriate for the testifying
physician to recount the details of another physician’s report or opinion. (People
v. Catlin (2001) 26 Cal.4th 81,
137, overruled on another ground in People
v. Nelson (2008) 43 Cal.4th 1242,
1253-1256.)
We find
that the trial court did not abuse its discretion in excluding inadmissible
hearsay material in defendant’s medical reports that was relied upon by his
expert. A great deal of the material in
the medical reports was irrelevant to defendant’s mental health history. Indeed, some of the information in the
reports included defendant’s extensive drug use and criminal history—information
in which the probative value to defendant would have been outweighed by its
prejudicial effect.
We further
find that the gravamen of defendant’s medical reports, especially the
observations and diagnoses of past physicians concerning defendant’s symptoms,
were covered and explained by Dr. Blak at both the guilt and sanity phases
of trial. Anything of true relevance to
defendant’s sanity and mental health history in the medical records was
thoroughly covered by the expert witnesses.
We conclude that defendant was not denied a fair trial by the exclusion
of medical reports of his mental health history.
DISPOSITION
The
judgment is affirmed.
__________________________
PEÑA, J.
WE CONCUR:
________________________________
LEVY, Acting P.J.
________________________________
FRANSON, J.
name="_ftn1" title="">[1]Unless
otherwise indicated, all statutory references are to the Penal Code.
name="_ftn2" title="">[2]Unless
otherwise noted, the events surrounding the offense, defendant’s arrest, and
his interrogations occurred in May 2009.
