P. v. Brown

Filed 8/27/08 P. v. Brown CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed.

Marilee Marshall and Jennifer Peabody for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Ronald A. Jakob, Jennifer A. Jadovitz, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Sherman Alan Brown, Jr., appeals from his conviction of two counts of second degree murder (Pen. Code,^[1] 187, subd. (a) counts 1 and 2), along with true findings on the allegations of personal firearm use with injury ( 12022.53, subd. (d)) as to those counts, and one count of endangering a child ( 273a, subd. (a) count 4). Defendant contends (1) the trial court erred in admitting into evidence statements obtained in violation of defendants privilege against self-incrimination; (2) the evidence of malice was insufficient to support his convictions for second degree murder; (3) the trial court erred in limiting the testimony of an expert witness for the defense; (4) defendant received ineffective assistance of counsel because his counsel failed to request a jury instruction that evidence of mental disorder and/or voluntary intoxication can negate express and implied malice; (5) the trial court erred in failing to instruct the jury on voluntary manslaughter; (6) defendant was deprived of due process and equal protection of law by the irrational denial of a defense of voluntary intoxication to a charge of second degree murder based upon implied malice; (7) a prosecution expert witnesss testimony was improper and usurped the jurys fact finding role; (8) the trial court erred in failing to instruct the jury on general principles of law presented by the evidence concerning causation; and (9) the cumulative error doctrine requires reversal.

We conclude the trial court erred in admitting into evidence defendants pretrial statements obtained in violation of People v. Miranda (1966) 384 U.S. 436 (Miranda), but we find the error harmless beyond a reasonable doubt. We find no other errors, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

A. Prosecution Evidence

At around 2:53 a.m. on November 5, 2001, Joshua Andreas (Joshua) called 911. Joshua said he had been shot twice, and someone had also shot his father, John Andreas (John). During the call, Joshua said, Sherman, several times, and Joshua was heard arguing with another man. Shots were fired, and the sounds of grunting and a struggle were heard. The other man twice asked for a shotgun. Joshua pleaded with the other man not to hurt him and then said, Just let me die[,] brother. A child, later determined to be Joshuas four-year-old son, was heard crying in the background, and the child called out defendants name. A tape recording of the 911 call was played for the jury, and the jurors were provided with a transcript of the recording. It was undisputed at trial that the other man heard on the tape recording was defendant.

Riverside County Sheriffs deputies arrived at the Andreas property on the Morongo Indian Reservation at about 3:04 a.m. John lived in the main house, and Joshua lived in a mobilehome in the rear. The deputies found Joshua on the front porch of the mobilehome, covered in blood; it appeared he had been shot in his upper torso, and he was also bleeding profusely from his head. Joshua told Deputy Eric Post that defendant had shot him and that defendant was inside the mobilehome. J., who was crying, walked in and out of the mobilehome several times.

After Deputy Post announced, Sherman. Sheriffs Department, Deputy Ole Williams saw defendant come out the back door of the mobilehome, carrying what appeared to be a lever-action rifle. Defendant walked toward Williams, pointing the rifle at him. Williams ordered defendant to drop the rifle, but defendant refused to do so. Fearing for his life, Williams fired five or six rounds, and another deputy fired two shots at defendant. Defendant was struck in his leg, hands, and arm.

After defendant was shot, the deputies placed him on his stomach and cuffed his hands behind his back. He did not indicate he was in pain or behave as if he had been shot. Defendant said his name was Sherman and that he was thirsty. When asked if he was okay, defendant replied in a sarcastic and belligerent tone of voice, Does it look like Im fucking okay?

Robert Grisham of the Morongo Fire Department asked defendant his name, and defendant responded, Tupac. Grisham asked if defendant hurt anywhere, but defendant did not respond. Grisham recognized defendant as a family member of the Andreases, and when Grisham said he knew who defendant was, defendant said his name was Brown. Grisham asked what had happened; defendant said he did not know and asked if Joshuas son was all right.

Grisham noticed that defendants hand was injured, with one or more fingertips missing and that defendant had a possible compound fracture of the arm, but defendant was able to move his arm and hand as if they were not injured. Because defendant did not appear to be in severe pain, Grisham thought defendant was under the influence of drugs. Another paramedic testified defendant had been uncooperative and incoherent, and his speech rambled. He said numerous times, Let me up; Untie me; and Uncuff me; and he said he would kill the paramedic if he did not let defendant up.

Jason Wachter, a captain with the Morongo Fire Department, responded to the scene. He found John in the bathroom of the main house. John had been shot, but he said he did not know what had happened. He appeared confused and shocked and was transported to the hospital.

John had been shot with a nine-millimeter bullet. The gunshot wound had penetrated Johns upper chest and passed through his small and large intestines, resulting in fecal contamination of his abdominal cavity. He lost a large amount of blood and underwent emergency surgery to repair the damage. He remained in the hospital until January 5, 2002, when he was discharged to rehabilitation. He suffered from preexisting diabetes, chronic alcoholism that caused cirrhosis of the liver, and hypertensive heart disease. On January 26, 2002, he suffered respiratory arrest and was admitted to the intensive care unit. He was discharged to hospice care on February 21, and he died on February 23, 2002.

Dr. Cohen, a forensic pathologist, testified that the gunshot wound had been a contributing cause of Johns death and opined that Johns death would be classified as a homicide. The autopsy report showed that Johns intestines were swollen, ischemic, and scarred, and he had a chronic bacterial infection in his abdomen. After receiving the gunshot wound, John was never able to eat, and he required tube feedings. The autopsy report stated that John suffered from end-stage liver disease, in which there was little or no liver function, and end-stage renal failure. John also had esophageal varices, dilated blood vessels in the esophagus.

Dr. Cohen testified that despite Johns underlying health problems, Johns condition had been relatively stable before he was shot, but [f]ollowing the injury, many, many complications ensued . . . .  The injury and surgery led to loss of two liters of blood, or about 40 percent of his blood volume, [a]nd what happens . . . when a person loses that much blood, is the kidneys are insulted by that.  Johns creatinine level, the measure of renal function, was 1.0, or normal, when he was admitted to the hospital.  It rose to 1.6, which is already getting into renal failure by the tenth day.

Joshua went into cardiac arrest at the scene and died of multiple gunshot wounds. He had a gunshot entrance wound to the chest and a corresponding exit wound in the back; the pattern of stippling indicated a close-range injury of 18 to 24 inches or less. He had two additional gunshot wounds to the chest with corresponding exit wounds in the back and an entrance wound and corresponding exit wound on the arm; those wounds appeared to have been inflicted from a greater distance. His face and head had 15 lacerations from blunt force impact; the wounds could have been caused by a rifle butt.

Maryann Andreas, Johns wife and Joshuas mother, testified that defendant and Joshua had a close relationship and no disputes. Defendant and Joshua were cousins by marriage and had been raised like brothers in the same household. Maryann also testified that Joshua and defendant had used alcohol and marijuana together.

Robert Masson, a senior investigator for the Riverside County Sheriffs Department (Masson), interviewed defendant twice: first in an ambulance in the late afternoon of November 5 when defendant was being transported after undergoing surgery, and second in the morning of November 6 at the hospital jail ward. Tape recordings of the interviews were played for the jury.

In the first interview, defendant said he did not know what had happened. He repeated several times that the cops got me, and he claimed someone had been in the back yard. Defendant said he had arrived at Joshuas house at around 9:00 p.m., and when Joshua let him in, someone was at the back door. Joshua went to check it out and then had called the police. Defendant said Joshua had grabbed his (Joshuas) rifle and later said Joshua had tossed the rifle to defendant. Defendant said that when the cops had [defendant] outside on the ground, he had had Joshuas rifle [c]ause we were chasing that guy out of the house. Defendant repeatedly mentioned someone named Lorenzo who had gone over the back fence before the deputies arrived. Defendant denied having shot anyone.

Masson then read defendant the Miranda advisements for the first time.  Masson asked if defendant would talk to him more when they got to the hospital, and defendant said, Yes. Defendant repeated that Joshua had thrown defendant the rifle because of Lorenzos presence. Masson told defendant he was lying and that no one else had been on the property. At that point, the ambulance arrived at the hospital, and the first interview ended.

In the interview the next morning at the hospital, defendant repeated that he had arrived at Joshuas house at 9:00 or 9:30 the evening before the shooting, that someone named Lorenzo had been in the back yard, and Joshua had tossed defendant the rifle. Defendant heard shots fired, saw someone run, and heard Joshua say, Ohh. Joshua was standing by defendants side, and they started to scuffle. Defendant said, I guess trying to get the gun, and I guess he came in right here. And then, uh, thats all I remember. Defendant claimed Joshua hit him with the tip of the rifle. When asked why they had scuffled, defendant answered, I dont know, I we were trying to get out like, the backdoor, and like, take the gun. And I was looking, and he looked, and thats when I heard shots fired. Defendant initially denied having used drugs that night, but later admitted he had used probably just a little bit of weed. He said he had used speed about two years earlier and had never used PCP (phencyclidine). Defendant admitted he owned the nine-millimeter gun found at the scene.

A blood sample taken from defendant on November 5, 2001, tested positive for amphetamine, methamphetamine, phencyclidine, and metabolites of marijuana. The level of THC, an active component of marijuana, in defendants blood was consistent with that of a person who smoked marijuana two or three times daily. Defendant had a level of methamphetamine consistent with long-term use, and his PCP level was substantial. A second blood test additionally showed the presence of opiates, possibly as the result of pain medication defendant was administered at the hospital.

Investigators found 6 nine-millimeter casings on the front porch of Joshuas house and 4 nine-millimeter casings inside the house. Two expended 30-30 rifle casings were recovered from behind the couch in the front room. The sliding glass door in the master bedroom of Johns house was shattered, apparently by a bullet. A window on Joshuas front porch was broken out. Two baseball bats were found in Joshuas home; both had blood smears on them.

Deputy Williams found a handgun and a lever action rifle that was missing the butt stock portion on the ground near where defendant had fallen after being shot. Although the rifles stock was missing, it could be fired. Ten casings found at the scene matched the nine-millimeter handgun and two more could have been fired from that gun; two casings matched the rifle, and eight matched the deputies weapons.

Maureen Black, a toxicologist, testified methamphetamine is a powerful stimulant that can cause, among other effects, long periods of wakefulness, agitation, nervousness, and irritability. PCP is a dissociative anesthetic that may cause hallucinations, delirium, disorientation, agitation, muscle rigidity, ataxia, nystagmus, seizures, and stupor. PCP had previously been used as an anesthetic to make patients unconscious during surgery, but such use had been discontinued because of the drugs serious side effects.

B. Defense Evidence

Dr. Hy Malinek, a forensic psychologist, evaluated defendant on March 4, 2004, and administered 11 cognitive and neuropsychological tests. Dr. Malinek measured defendant as having a verbal IQ of 77 and a performance IQ of 72. An IQ of 70 to 80 is considered borderline, and persons within that range have cognitive limitations. An IQ below 70 is classified as retarded.

A defense toxicologist testified that the combination of methamphetamine, PCP, and marijuana could cause bizarre behavior.

Dr. Harry Bonnell testified as an expert in anatomic and forensic pathology. Dr. Bonnell reviewed Johns medical records and autopsy report. In response to the question whether the gunshot had been a causative factor in Johns death, Dr. Bonnell responded that [i]t certainly didnt help him. Dr. Bonnell testified that the surgery for the gunshot wound had gone well, and the damage from the gunshot wound had healed up. In Dr. Bonnells opinion, John had died from chronic alcoholism and end-stage renal disease. Dr. Bonnell testified that he could not find any indication in the medical records that the gunshot wound caused or even contributed to [Johns] death.

Dr. Samuel Miles, a defense psychiatrist and forensic psychopharmacologist, reviewed photographs, medical reports, experts reports and toxicological reports, listened to the tapes of the 911 call and of Massons interviews of defendant, and interviewed defendant. Dr. Miles concluded that defendant suffered from polysubstance abuse and dependence. Dr. Miles testified about the effects and interactions of the methamphetamine, PCP, and marijuana found in defendants blood after the shootings. Dr. Miles testified that the drugs defendant had ingested diminished the ability to distinguish between what was real and what was imagined. Memory became like a vivid dream that was quickly forgotten. The combination and quantity of drugs in defendants system would have affected his memory of events; memories might never have been encoded, or whatever had been encoded might have been patchy. Dr. Miles testified that defendants psychological tests indicated defendant had lost his ability to test reality and manifested disordered thinking and impaired judgment. In Dr. Miless opinion, based on defendants drug levels, it was likely that, at the time of the shooting, defendant might not have known what was real, and he might even have been unconscious. A person can be unconscious from severe intoxication or delirium, and even though the person may move around and appear agitated, he or she may be unaware of and unable to control actions. It is very disconcerting for a person to learn he has been involved in something significant he cannot remember, so the person tends to try to fill in the blanks, even with fantasy.

C. Verdicts and Sentence

The jury found defendant guilty of two counts of second degree murder ( 187, subd. (a) counts 1 and 2), and found true the allegations of personal firearm use with injury or death ( 12022.53, subd. (d)) as to those counts. The jury also found defendant guilty of endangering a child ( 273a, subd. (a) count 4). The trial court sentenced defendant to 15 years to life for count 1, a consecutive term of 25 years to life for the firearm enhancement attached to that count, a consecutive term of 15 years to life for count 2, a consecutive term of 25 years to life for the firearm enhancement attached to that count, and a four-year concurrent term for count 4.

Other facts are set forth in the discussion of the issues to which they pertain.

III. DISCUSSION

A. Admissibility of Defendants Pretrial Statements

Defendant contends the trial court erred in admitting into evidence statements obtained in violation of defendants privilege against self-incrimination. Defendant argues the Miranda warnings were not given until after he had already been extensively questioned; his purported waiver of rights and subsequent statement were involuntary because he was in obvious pain and was under the influence of narcotics; and questioning should have ceased after he invoked his right to counsel and his privilege against self-incrimination.

The People concede that the statements defendant made before receiving the Miranda advisements should have been suppressed. They argue, however, that the postwarning statements were admissible or, in the alternative, that any error in the admission of the postwarning statements was harmless beyond a reasonable doubt.

1. Background

Defendant moved before trial to suppress his statements to Masson. At the hearing on the motion, Masson testified that at about 6:00 p.m. on November 5, he had ridden in the ambulance with defendant, who was being transported between hospitals.  Defendant was hooked up to an IV and was in pain but appeared coherent.  Masson asked defendant questions to determine a motive for the shooting.

Eventually, on page 22 of a 28-page transcript, Masson read defendant his Miranda rights and asked defendant if he understood and wanted to waive his rights.  Defendant responded, Mm hmm, which Masson interpreted as a Yes.  Masson pushed for a yes or no answer, and defendant replied, I said no, thats all I know that happened.  However, defendant agreed to talk to Masson again at the hospital.

Masson returned to the hospital at 8:20 the following morning and again read defendant his Miranda rights.  When Masson mentioned defendants right to counsel, defendant interrupted and asked, So wheres he at?  Masson continued with the advisement, and defendant asked, Yeah, aint [sic] he supposed to be here, though?  Masson replied, Well, if . . . you want one thats fine. I mean, but . . . Im here to talk to you .  Defendant said, Yeah, I dont want to intimidate [sic] myself or nothing [sic] like that . Masson stated, Well, . . . Im not here to intimidate you, you know .  Defendant again stated, I dont want to say nothing [sic] that . . . theyll be able to use against me, or nothing [sic] like that. Masson explained that defendants statement would be in a report on the case.  Masson told defendant he was under arrest, but Masson wanted to get defendants side of the story. Defendant said he had already told Masson all he knew.  Masson replied, Okay.  But, you know, thats why Im back here.  I want to clarify this. Okay? When defendant said that Masson had taken a report the previous night and it would be the same report now, Masson stated, Okay.  Okay.  Well, I . . . got some additional questions that I want to ask you.  Defendant said, Go ahead.

The trial court found that defendant had been in custody during both interviews and there was not a crisp response on either occasion following the reading of the Miranda advisements.  The court found that defendants responses had been ambiguous, and the officer was entitled to pursue the issue.  Based on the totality of the circumstances, the trial court concluded defendant had waived his rights, and the evidence did not show that defendant was unable to knowingly and voluntarily give up those rights or that his will had been overcome by pain.  The trial court denied the motion to suppress the statements.

2. Standard of Review

In considering a claim that a statement or confession is inadmissible under Miranda, we accept the trial courts resolution of disputed facts and inferences and its evaluation of credibility, if supported by substantial evidence. [Citation.]  (People v. Haley (2004) 34 Cal.4th 283, 299.) We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained. [Citations.] (People v. Cunningham (2001) 25 Cal.4th 926, 992 (Cunningham).)

3. Analysis

Before law enforcement officers may interrogate a suspect who is in custody, they must clearly inform the suspect of his right to remain silent, that any statement he makes may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. (Miranda, supra, 384 U.S. at pp. 473-474.) Statements obtained in violation of Miranda are presumed involuntary and are inadmissible in the prosecutions case-in-chief. (Id. at pp. 476; Missouri v. Seibert (2004) 542 U.S. 600, 608-610 (Seibert).)

The People concede error in the admission of defendants pre-advisement statements. Thus, the specific issue in this case is whether the statements defendant made after receiving the Miranda advisements should have been suppressed as well. The United States Supreme Court has addressed the admissibility of statements made under similar circumstances in two cases, Seibert, and Oregon v. Elstad (1985) 470 U.S. 298, 314 (Elstad), and the Court reached opposite results in those cases based on the particular factual circumstances.

In Seibert, police officers questioned the defendant, who was under arrest, for 30 to 40 minutes before she confessed; the officers did not give Miranda warnings before the questioning. After a 20-minute break, the officers finally gave the Miranda warnings, and the defendant signed a waiver of rights. The officers then confronted her with her prewarning statements, and she confessed again. (Seibert, supra, 542 U.S. at p. 605.) The officer who had conducted the questioning testified during the suppression hearing that he had made a conscious decision to withhold Miranda warnings pursuant to an interrogation technique he had been taught, to question first, then give the warnings, and then repeat the question until the defendant provided the answer he or she had already provided once. (Seibert, supra, at pp. 605-606.) The trial court held the prewarning statements were inadmissible but admitted the postwarning confession. (Ibid.)

A plurality of the United States Supreme Court in Seibert determined that the repeated statement obtained immediately after the police had first obtained an incriminating statement without giving Miranda warnings was inadmissible [b]ecause this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Mirandas constitutional requirement. (Seibert, supra, 542 U.S. at p. 604.) The plurality reasoned that [t]he object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed. (Id. at p. 611.) Under the plurality approach, circumstances to be considered include the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogators questions treated the second round as continuous with the first. (Id. at p. 615.)

In a concurring opinion, Justice Kennedy set forth a narrower test: If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) Such curative measures might include a substantial break in time and circumstances between the prewarning statement and the Miranda warning, and an additional warning that explains the likely inadmissibility of the prewarning custodial statement. (Seibert, supra, at p. 622.) Since Justice Kennedy supplied the fifth vote in [Seibert], and concurred on grounds narrower than those put forth by the plurality, [his] position is controlling. (See Romano v. Oklahoma (1994) 512 U.S. 1, 9.)

In Elstad, in contrast, the Supreme Court had held that a confession repeated at the end of an interrogation sequence envisioned in a question-first strategy was admissible. (See Seibert, supra, 542 U.S. at p. 615.) In Elstad, a teenage suspect made incriminating statements in response to questions asked by an officer during a brief stop in the boys living room while another officer was explaining the charges to the boys mother in another room. (Elstad, supra, 470 U.S. at p. 315.) The suspect later was systematically interrogated at the police station after Miranda warnings were given. (Elstad, supra, at pp. 314-316.)

The Seibert plurality distinguished Elstad,observing that the pause in the living room was not to interrogate the suspect but to notify his mother of the reason for his arrest, [citation] (Seibert, supra, 542 U.S. at p. 614), and the incident had none of the earmarks of coercion, [citation]. The Seibert Court noted that the officers initial failure to warn in Elstad was an oversight that may have been the result of confusion as to whether the brief exchange qualified as custodial interrogation or . . . may simply have reflected . . . reluctance to initiate an alarming police procedure before [an officer] had spoken with respondents mother. [Citation.] (Seibert, supra, at p. 614.) The Seibert plurality observed that, in Elstad, at a later and systematic station house interrogation going well beyond the scope of the laconic prior admission, the suspect was given Miranda warnings and made a full confession. (Seibert, supra, at p. 614.) Thus, [i]n Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable person in the suspects shoes could have seen the station house questioning as a new and distinct experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission. (Id. at pp 615-616.)

The Seibert plurality further noted, The [Elstad] Court thought any causal connection between the first and second responses to the police was speculative and attenuated, [citation]. Although the Elstad Court expressed no explicit conclusion about either officers state of mind, it is fair to read Elstad as treating the living room conversation as a good-faith Miranda mistake, not only open to correction by careful warnings before systematic questioning in that particular case, but posing no threat to warn-first practice generally. [Citation.] (Seibert, supra, 542 U.S. at p. 615.)

In contrast to the situation in Elstad, the police strategy in Seibert had been adapted to undermine the Miranda warnings the unwarned interrogation was systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid. The warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment. When the same officer who had conducted the first phase recited the Miranda warnings, he said nothing to counter the probable misimpression that the advice that anything Seibert said could be used against her also applied to the details of the inculpatory statement previously elicited. In particular, the police did not advise that her prior statement could not be used. Nothing was said or done to dispel the oddity of warning about legal rights to silence and counsel right after the police had led her through a systematic interrogation, and any uncertainty on her part about a right to stop talking about matters previously discussed would only have been aggravated by the way [the officer] set the scene by saying weve been talking for a little while about what happened on Wednesday the twelfth, havent we? . . . The impression that the further questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given. It would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspects shoes would not have understood them to convey a message that she retained a choice about continuing to talk. (Seibert, supra, at pp. 616-617, fn. omitted.)

Applying the Seibert principles, we first consider whether the police employed a deliberate two-step strategy. (Seibert, supra,542 US. at p. 622 (conc. opn. of Kennedy, J.).) As the court in Seibert noted, the intent of the officer will rarely be as candidly admitted as it was here, and thus, the focus is on facts apart from intent that show the question-first tactic at work. (Seibert, supra,at p. 617, fn. 6.) The People argue unpersuasively that this [was] not a case in which the officer purposely attempted to circumvent Miranda as the officers did in Seibert.  Rather, the People assert, this case is more like Elstad.

However, in our view, the record strongly indicates Masson did deliberately use a question-first strategy his admitted purposes in questioning Brown were to [t]ry[] to figure out what was going on in the investigation and to determine a motive for the shootings. After asking defendant several times to tell him what had happened, but before giving Miranda advisements, Masson said, Sherman, I need to get a voluntary statement from you, is that okay? Masson then said, I wanna [sic] find out what happened. Is that okay? Masson proceeded through a systematic interrogation by asking for defendants date of birth and address and whether he was on probation or parole. Masson repeatedly told defendant, I need to find out what happened. Masson stated, I just wanted to make sure, you know, that you understand that its a voluntary statement that youre giving me. You understand that, correct? The next morning, Masson furthered the impression that the questioning was a mere continuation of the earlier questions and responses. The People have pointed to nothing in the record that establishes curative measures [were] taken before the postwarning statement [was] made. (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).)

Admission of statements obtained in violation of Miranda is subject to review under the standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), under which we inquire whether the error may be deemed harmless beyond a reasonable doubt. (See Arizona v. Fulminante (1991) 499 U.S. 279, 310; Cunningham, supra, 25 Cal.4th at p. 994.) In Cunningham, the court held that the admission of the defendants statements obtained in violation of Miranda was harmless error under the Chapman standard. The court explained that although the statements showed the defendant had been present at bars the night of the murder, the testimony of other witnesses established the same fact in far greater detail. Moreover, the court stated, inconsistencies between the defendants statements and the testimony of other witnesses at most revealed defendants general lack of veracity. They were not inculpatory and did not contribute to defendants conviction in light of the entire record. [Citation.] (Cunningham, supra, at p. 994.)

Here, notably, defendants statements were not confessions. In both interviews, defendant continuously claimed he could not recall what had happened, and he denied having shot anyone. He asserted that another person, Lorenzo, had been present. Thus, defendants statements in both interviews were largely exculpatory; it appears that the prosecutors purpose in admitting the statements was to show defendants general lack of veracity. (See Cunningham, supra, 25 Cal.4th at p. 994.) Defendant did admit owning the nine-millimeter gun found at the scene; however, that was merely a collateral issue.

Overwhelming evidence at trial conclusively established that defendant had shot both Joshua and John. In the 911 tape, Joshua was heard repeatedly stating that defendant was the person who had shot him, and defendants voice was heard making comments such as fuck you, and asking for a shotgun. Defendant emerged from Joshuas mobilehome holding a rifle; both the rifle and the nine-millimeter handgun were found near defendant after the deputies shot him.

We therefore conclude any error in admitting defendants statements did not contribute to defendants conviction in light of the entire record, and such error was harmless beyond a reasonable doubt.  (Cunningham, supra, 25 Cal.4th at p. 994.)

B. Sufficiency of Evidence of Malice

Defendant contends the evidence of malice was insufficient to support his convictions for second degree murder. He argues there was insufficient evidence he harbored either express or implied malice because he was of low intelligence, under the influence of numerous illegal substances, in a psychotic state, and suffering the hallucinations and delusions of a schizophrenic.

1. Standard of Review

When we analyze a criminal defendants claim that the evidence was insufficient to support his conviction, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence that is, evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts 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. [Citations.] [Citation.] Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. [Citation.] (People v. Abilez (2007) 41 Cal.4th 472, 504.)

2. Analysis

Murder is the unlawful killing of a human being . . . with malice aforethought. ( 187, subd. (a).) Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. ( 188.) Unpremeditated murder that is committed with malice is second degree murder. ( 189.)

Defendant concedes the jury rejected the theory that he had been unconscious during the shootings, but he states conclusionarily that he did not intend to kill the Andreases and focuses his argument on the evidence that tended to show lack of implied malice, including lack of motive and his impaired condition from drug use and low intelligence. Having concluded that the jury convicted him on the theory of implied malice based on the life-endangering act of voluntarily ingesting multiple illegal substances, defendant next contends such a theory was legally invalid.  (See People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.)  Thus, he argues, no rational trier of fact could have found he acted with implied malice. However, we need not even consider whether the evidence supported a theory of implied malice, because abundant circumstantial evidence in the record fully supports the jurys verdict on the theory of express malice.

Express malice means a deliberate intention unlawfully to take the life of another.  ( 188.)  Although defendant argues there was no apparent motive for the shootings, motive is not an element of the crime of murder. (People v. Smith (2005) 37 Cal.4th 733, 741 (Smith). [E]vidence of motive is not required to establish intent to kill, and evidence of motive alone may not always fully explain the shooters determination to shoot at a fellow human being with lethal force. (Ibid.) The Smith court continued, Evidence of motive aside, it is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendants acts and the circumstances of the crime. [Citation.] There is rarely direct evidence of a defendants intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendants actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . . [Citation.] [Citations.] (Ibid.) The court concluded that the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of intent to kill. (Id. at p. 742.)

Here, Joshua suffered numerous blunt force injuries and lacerations as well as four gunshot wounds.  Three of the gunshots had been to the chest, and one had been fired at close range from 18 to 24 inches.  John had been shot once in the chest.  The prosecutor argued express malice as well as implied malice: But his [Joshuas] wounds do speak on his behalf as to the degree of malice used. The prosecutor continued, Yeah, there was malice. No, this wasnt negligence. He shot him and he beat him and beat him again. And then all over the body numerous abrasions and contusions, . . . We conclude the manner of the killings multiple shots fired at relatively close range combined with a severe beating was sufficient circumstantial evidence of express malice. (People v. Smith, supra, 37 Cal.4th at p. 741.) We therefore reject defendants contention that the evidence was insufficient to support his conviction of second degree murder.

C. Limitation of Expert Testimony

Defendant sought to admit portions of defendants interview with Dr. Miles regarding defendants drug abuse history and education, but the trial court ruled such evidence was inadmissible. Defendant contends the trial court erred in limiting the testimony of his expert witness.

1. Background

Prosecution witnesses testified they had recovered from defendants clothing a bag containing mushrooms, which were determined to be hallucinogenic mushrooms. Such mushrooms contained psilocybin, which converts in the bloodstream to psilocin. In January 2004, a criminalist examined a sample of defendants blood and found it negative for psilocin; however, psilocin is unstable and does not remain in the blood for extended periods. Defendants blood was not tested for psilocin in 2001, and if psilocin had then been present, it would have been gone by 2004.

The trial court conducted a hearing under Evidence Code section 402 to determine the admissibility of evidence that Dr. Miles had interviewed defendant about defendants drug use in general and his use of and the effects of mushrooms containing psilocybin or psilocin on the day of the shooting. Such statements purportedly had helped form the basis of Dr. Miless opinions in the case. The trial court held that the evidence was inadmissible because defendants statements, even if relied on by Dr. Miles, constituted inadmissible hearsay. Dr. Miles testified that psilocin is unstable, and a blood test taken years after ingestion would be unlikely to show psilocin.

2. Standard of Review

Trial courts are vested with broad discretion in ruling on the admissibility of expert testimony, and we review their rulings for abuse of discretion. (People v. Pollock (2004) 32 Cal.4th 1153, 1171 (Pollock).)

3. Analysis

It is well established that a trial court acts within its discretion when it precludes expert opinion testimony based in large part on hearsay statements of the defendant. (Pollock, supra,32 Cal.4th at p. 1172.) In Pollock, the court found no abuse of discretion in the trial courts exclusion of a defense expert witnesss opinion on whether the defendants conduct surrounding the charged crimes was consistent with a binge pattern of crack cocaine use. (Ibid.) The court explained, That opinion would necessarily be based in large part on defendants hearsay statements to [the expert] . . . . To avoid putting this potentially self-serving and unreliable hearsay before the jury, without defendant ever having testified and submitted to cross-examination, the trial court could properly require the defense to proceed by the use of hypothetical questions. (Ibid.; see also People v. Hughes (2002) 27 Cal.4th 287, 339-340 [holding the trial court did not abuse its discretion in barring a defense expert from testifying about the defendants statements to a defense investigator concerning drug use].) We likewise conclude the trial court did not abuse its discretion in excluding such testimony in the present case.

Moreover, the excluded testimony apparently went to the issues of defendants ingestion of psilocybin-containing mushrooms and the effects of such mushrooms. The jury already had ample evidence before it that defendants blood showed the presence of large amounts of amphetamine, methamphetamine, PCP, and metabolites of marijuana. A prosecution toxicologist, a defense toxicologist, and Dr. Miles, all testified about the characteristics, effects, and interactions of those drugs, and Dr. Miles testified that defendant had been in a psychotic state as a result use of those drugs. Under the circumstances, it is unlikely that evidence of additional drug use would have substantially aided the defense.

D. Assistance of Counsel

Defendant contends he received ineffective assistance of counsel because his counsel failed to request the trial court to instruct the jury with CALJIC No. 3.32 that evidence of mental disorder and/or voluntary intoxication can negate both express and implied malice.

1. Background

Defense counsel presented Dr. Miless expert opinion that defendant was intoxicated at the time of the shootings, and that he also was in a psychotic state as a result of longtime abuse of multiple illegal substances. In addition, defendant was of borderline intelligence. The jury was instructed on the definitions of voluntary intoxication (CALJIC No. 4.22), involuntary manslaughter (CALJIC No. 8.45), and involuntary manslaughter killing while unconscious due to voluntary intoxication (CALJIC No. 8.47). The jury was also instructed that voluntary intoxication may negate specific intent. (CALJIC No. 4.21.1.)

Defense counsel did not request that the jury be instructed with CALJIC No. 3.32 (Evidence of Mental Disease Received for Limited Purpose), and the trial court did not give that instruction. CALJIC No. 3.32 states:  You have received evidence regarding a [mental disease] [mental defect] [or] [mental disorder] of the defendant _______ at the time of the commission of the crime charged [namely, _____] [in Count[s] _____][.] [or a lesser crime thereto, namely ______].  You should consider this evidence solely for the purpose of determining whether the defendant ______ actually formed [the required specific intent,] [premeditated, deliberated] [or] [harbored malice aforethought] which is an element of the crime charged [in Count[s] ______], namely, ______ [.] [or the lesser crime[s] of _________].

2. Standard of Review

A defendant who claims he received ineffective assistance of counsel must show both that his trial counsels performance fell below an objective standard of reasonableness (Strickland v. Washington (1984) 466 U.S. 668, 687-688) and that there [was] a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Id. at p. 694; People v. Benavides (2005) 35 Cal.4th 69, 93.)

3. Analysis

CALJIC No. 3.32 is in the nature of a pinpoint instruction that is required to be given only on request where the evidence supports the defense theory. (People v. Ervin (2000) 22 Cal.4th 48, 91.) Defendant claims because he was suffering from a psychotic state induced by multiple drug use when he shot the Andreases, his counsel provided ineffective assistance by failing to request the trial court to instruct with CALJIC No. 3.32.

In People v. Ervin, supra, 22 Cal.4th at p. 91, the court held that any error in the failure to instruct with CALJIC No. 3.32 was harmless in light of the other instructions given, including the instruction on voluntary intoxication (which was also given in the present case). The court explained, [T]he [trial] court did instruct the jury that defendants drug intoxication at the time of the crime could be considered in determining whether he had the requisite specific intent or mental state. Nothing in this or any other instruction limited the jurys consideration of defense psychiatric evidence to defendants intoxication at the time of the crime, and the jury was free to consider both the long-term and immediate effects of substance abuse on defendants formation of the requisite mental state. [] In addition, defense counsel in closing argument urged the jury to find that defendant, being saturated with drugs, at the time of the murder, lacked the ability to premeditate or deliberate. Although the instruction and argument focused on defendants drug intoxication at the time of the crime rather than his history of drug abuse, it is unlikely additional focus on his past abuses would have resulted in a more favorable verdict. We conclude that the courts instructions, coupled with counsels arguments, were sufficient to allow the jury to consider whether defendants drug use prevented him from premeditating or deliberating his criminal acts. It was not reasonably probable the jury would have reached a different verdict had the court given CALJIC No. 3.32. [Citation.] (People v. Ervin, supra, at p. 91.)

Here, as in People v. Ervin, we conclude it was not reasonably probable the jury would have reached a different verdict if it had been instructed with CALJIC No. 3.32. Thus, defendant has failed to demonstrate prejudice from his counsels failure to request that instruction (People v. Benavides, supra, 35 Cal.4th at p. 93) and consequently, defendant has failed to establish ineffective assistance of counsel. (Strickland v. Washington, supra, 466 U.S. at p. 694.)

E. Voluntary Manslaughter Instruction

Defendant contends the trial court erred in refusing to instruct the jury on voluntary manslaughter.

The trial court is required to instruct the jury on all lesser included offenses supported by the evidence, regardless of the theories of the case proffered by the parties. (People v. Breverman (1998) 19 Cal.4th 142, 153.) Voluntary manslaughter is a lesser included offense of murder. (People v. Heffington (1973) 32 Cal.App.3d 1, 11.) However, the trial court is required to instruct on a lesser included offense only when the record contains substantial evidence from which a reasonable jury could conclude that the defendant is guilty of the lesser crime. (People v. Birks (1998) 19 Cal.4th 108, 118.) More specifically, [a] [trial] court is not obligated to instruct sua sponte on voluntary manslaughter as a lesser included offense [of murder] in the absence of substantial evidence that the defendant acted in a sudden quarrel or heat of passion ( 192, subd. (a)), or that the defendant killed in unreasonable self-defense. [Citation.] [Citation.] (People v. Hoyos, supra, 41 Cal.4th at p. 914.)

Voluntary manslaughter has both a subjective element that the killing actually was done in the heat of passion and an objective element that the heat of passion resulted from provocation such that an average, sober person would be so inflamed that he or she would lose reason and judgment. [Citation.] (People v. Manriquez (2005) 37 Cal.4th 547, 584, 585-586.) In his briefs on appeal, defendant has pointed to no evidence that the killings involved a sudden quarrel, heat of passion based on sufficient provocation, or unreasonable self-defense, and he has failed to explain how the jury might have applied those theories to the evidence in the case. We conclude defendant has failed to show any support for an instruction on voluntary manslaughter. (Id. at p. 586.)

F. Section 22

Defendant contends section 22 deprived him of due process and equal protection of law by irrationally denying him a defense of voluntary intoxication to a charge of second degree murder based upon implied malice.

Section 22, subdivision (a) states, No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Section 22, subdivision (b) states, Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.

Defendant contends that section 22 violates equal protection principles because there is no rational basis for excluding evidence of voluntary intoxication on the issue of implied malice while admitting such evidence on the issue of express malice. Implied malice requires proof that the defendant knew his conduct endangered the life of another and acted with a conscious disregard for life, i.e., actually appreciated the risk posed by his conduct. (People v. Hansen (1994) 9 Cal.4th 300, 308; People v. James (1998) 62 Cal.App.4th 244, 277.)

In 1995, the Legislature amended section 22 to preclude evidence of voluntary intoxication to negate implied malice aforethought. (People v. Martin (2000) 78 Cal.App.4th 1107, 1114 (Martin).) The court explained the amendment in People v. Boyer (2006) 38 Cal.4th 412, 469, fn. 40: In 1995, section 22 was amended to provide prospectively that when the charge is murder, voluntary intoxication is admissible solely on the issue . . . whether the defendant premeditated, deliberated, or harbored express malice aforethought. [Citation.] Hence, depending on the facts, it now appears that defendants voluntary intoxication, even to the point of actual unconsciousness, would not prevent his conviction of second degree murder on an implied malice theory, or of voluntary manslaughter based on his or her potentially lethal act, committed with conscious disregard for life, in response to provocation or as the result of an honest, though unreasonable, belief in the need for self-defense. [Citations.]

In People v. Atkins (2001) 25 Cal.4th 76, 93 (Atkins), our Supreme Court rejected the argument that exclusion of evidence, under section 22, of the defendants voluntary intoxication violate[d] his due process rights by denying him the opportunity to prove he did not possess the required mental state [citations]. (People v. Sorden (2005) 36 Cal.4th 65, 72, fn. omitted.) Similarly, in Martin, the court rejected the defendants due process challenge to section 22, holding that a defendant has no fundamental right to have the jury consider evidence of voluntary intoxication in determining whether the defendant possessed the requisite mental state. (Martin, supra, 78 Cal.App.4th at pp. 1115-1117.) And in People v. Timms (2007) 151 Cal.App.4th 1292 (Timms), the court found that section 22 did not violate a defendants due process.  The court held that subdivision (b) embodies a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions.  (Timms, supra, at p. 1300.)

Defendant has failed to cite either Atkins or Martin and merely asserts conclusionarily that Timms was wrongly decided. We disagree. We are bound by Atkins, Martin, and Timms (Auto Equity Sales, Inc. v. Superior Court (196