P. v. Gallegos
Filed 6/26/12 P. v. Gallegos CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MELVIN GALLEGOS,
Defendant and Appellant.
D058301
(Super. Ct.
No. SCN246146)
APPEAL from
a judgment of the Superior Court
of
County, Michael D. Wellington, Judge. Affirmed.
Melvin
Gallegos appeals from a judgment convicting him of premeditated attempted
murder and other offenses. He asserts
the trial court erred by: (1) denying
his motion to exclude statements he made to the authorities without being
provided Miranda
warnings; (2) adding language to the standard instruction on premeditation and
deliberation stating that it was not necessary to prove the defendant
"maturely and meaningfully reflected"; and (3) providing standard
instructions on the use of evidence of uncharged domestic violence or elder
abuse to infer his propensity to commit the charged offenses. We find no error and affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
The
offenses in this case occurred on May
10, 2008, when Gallegos, age 76, stabbed his wife, Penelope
Gallegos, age 69. Penelope survived the
assault and testified at trial.
Penelope and defendant were married
in 1982, and about 10 years later defendant started becoming verbally
abusive. Penelope coped with the verbal
abuse by periodically leaving their home to stay with her daughter. On April
16, 2007, the verbal abuse escalated into physical abuse. During this incident, the couple got into an
argument and defendant pushed Penelope against a wall and put his
on her cell phone. Defendant was
arrested, charged with misdemeanor spousal battery, and pleaded guilty to
misdemeanor disturbing the peace.
Penelope obtained orders prohibiting defendant from having any contact
with her and requiring that he move out of their house. In September 2007, Penelope decided to try to
reconcile with her husband. She had the
stay-away order modified to allow contact; they went to counseling; and
defendant moved back into their home.
Although defendant was trying to treat her better, Penelope felt he was
still angry because she had him "thrown away from the house."
The night
before the stabbing incident, Penelope was speaking on the phone with her
neighbor, Mary Ann Lopez. Penelope told
Lopez that she did not think she could stay in the marriage because she had no
respect for defendant and was afraid of him, and if he ever touched her
"like that again" she would have him removed from their home. While Penelope and Lopez were talking, they
heard a "click" on the phone.
Lopez asked if defendant was listening and Penelope said he was
not. Defendant then came out of his
room, appearing upset. When Penelope
asked if he had been listening in on her phone call, he said yes.
are bitches . . . you bitch. . . .
[Lopez], you'll be sorry if you come around this house."
Defendant went outside and started
walking his dog. Lopez heard him
screaming to a neighbor about his wife and Lopez talking on the phone. The neighbor told him to calm down.
When defendant returned home, he
did not appear angry but seemed strangely calm.
He did not say a word to Penelope, and they went to bed in their
separate bedrooms. The next morning,
Penelope made coffee and defendant came into the kitchen and poured himself a
cup of coffee. The couple did not speak to
each other and defendant was "quiet."
While Penelope was drinking her coffee, defendant put her in a choke
hold, told her he was going to punch her in the face, and repeatedly punched
her in the face. She fell to the floor
and defendant kicked her in the head.
Defendant said he was not going to punch her anymore but was going to
kill her. He pulled a knife from the
kitchen drawer; stabbed her in her breast and stomach areas; and stabbed
himself in the stomach.
Penelope left her house and managed
to go to the home of her next-door neighbor (Tatiana Stillwell). Penelope told Stillwell that defendant was
trying to kill her, he punched her in the face and stabbed her, and he stabbed
himself. Penelope was bleeding heavily
and she passed out on the floor.
Stillwell called 911. When the
police arrived, Penelope told them that she had been stabbed by her husband;
her husband was still at their home next door; and her husband had stabbed
himself.
Penelope was transported by
emergency personnel to the hospital. She
had sustained multiple bruises on her face and two abdominal stab wounds; she
was in critical condition; and she required immediate surgery. She was in the hospital for about five and
one-half months; she underwent multiple surgeries including the removal of her
spleen and portions of her liver, stomach, and duodenum; and she was in a
rehabilitation center for about six weeks.
She had to learn to walk again, has to take medication for seizures, has
trouble with her balance, and has nerve damage.
When the authorities arrived at
defendant's home, they found defendant lying on the bed in Penelope's bedroom
with a knife in his stomach. The police
set up a recorder in the room, and the police and paramedics questioned him
while he was being treated and prepared for placement in an ambulance. When asked about what occurred, defendant
stated that his wife was going to "throw" him out in the street with
"lies" again and that she accused him of making holes in the wall
with a nail; he did not want any help and wanted to "leave the
planet"; he used the same knife to stab his wife and himself; and the
knife was the "biggest one [he] could find." While in the ambulance, he told the paramedic
that he was putting pictures up on the wall and his wife kept "nagging and
nagging and nagging"; he "told her once and told her a thousand
times" and he was "fed up"; and "that bitch will never nag
at [him] again."
Jury's Verdict and Sentence
The jury
convicted defendant of deliberate and premeditated attempted murder, elder
abuse likely to cause great bodily harm or death, and corporal injury to a
spouse resulting in a traumatic condition.
The jury also found true allegations that he personally used a deadly
weapon, and personally inflicted great bodily injury under circumstances
involving domestic violence. He was
sentenced to life with the possibility of parole for attempted murder, and a
five-year determinate term for the great bodily injury enhancement for this
offense. The court stayed the sentences
on, or dismissed, the remaining counts and allegations.
DISCUSSION
I. Denial
of Motion To Exclude Defendant's
Recorded Statements
Defendant
asserts the trial court erred in denying his motion to exclude the recorded
statements that he made at his home without the provision of
up the recorder in the bedroom where defendant was lying and defendant was
questioned prior to his transfer from the bedroom to an ambulance. As we shall explain, we conclude there was no
Miranda violation because the
questioning was conducted in an investigative, noncustodial environment.
A.
Background
1.
Defendant's Recorded Statements
When the police contacted Penelope
at her neighbor's home, she told them that her husband had stabbed her and
stabbed himself and that he was still at their home. The police then went to defendant's home and
found him lying in the bedroom. Shortly
thereafter, Sergeant Rene Bowman arrived at defendant's home, told some of the
officers they could leave, and took over the handling of the scene. After the recorder was set up in the bedroom,
Sergeant Bowman asked defendant if he wanted to talk to her; what happened; and
whether the other injured person was his wife or his girlfriend. Defendant responded that his "life ended
today"; the other injured person was his wife; and his wife "lies and
lies and lies and lies." When the
paramedics arrived in the bedroom, Sergeant Bowman told them, "Can't get
out of him, what happened."
Paramedic John Neilson then asked
defendant whether he had medical problems and what medications he took. Defendant responded that he did not want any
help and he was "leaving the planet . . . ." Neilson told defendant:
"Well
unfortunately right now whether you want to or not you're gonna be going where
we want you to go. So it's kind of
important that you . . . answer my questions and help me
out here. Even though you don't feel
like cooperating or you'[d] rather just feel like sitting there, keeping your
mouth shut and stuff—all it's gonna do is just . . . kinda
anger more people, okay So do you have
medical problems that you take medications for daily Yes
No"
After making these inquiries, Neilson asked defendant why he
stabbed his wife, and defendant responded because she was going to
"throw" him out in the street with "lies" again.
As Neilson and the other paramedics
continued treating defendant in preparation for placement in the ambulance,
Sergeant Bowman and Neilson asked him questions about the incident. When Sergeant Bowman asked what happened,
defendant stated that his wife had accused him of being in the house with his
neighbor "pounding holes in the wall with a nail." Sergeant Bowman asked how did they both "end
up with[] stab wounds" on them, and Neilson asked whether defendant
"[j]ust kinda got fed up. That
kinda thing . . . [¶] . . . . Told
her once, told her twice, told her a million times kinda thing or what Just had enough" Neilson also interjected, "Hey Mel
[i.e., defendant]. Help us out and
answer some questions please."
Sergeant
Bowman asked defendant if he wanted to "give [his] side of the story"
that morning so they would not have "to guess at anything." Defendant responded that there was "no
side," and he just wanted to "leave the planet" and did not
"care about any sides right now."
Sergeant Bowman asked why his wife had injuries and whether defendant
wanted her "to leave the planet too."
Defendant responded that his wife was a liar; he tried to talk to her;
and she kept insisting he did certain things.
When Sergeant Bowman asked how did they get "to this point,"
defendant stated, "It was a long time in coming." Sergeant Bowman asked what happened this
morning and whether they were arguing, and defendant answered he just wanted to
talk to her before she left for Los Angeles.
As Sergeant Bowman continued to ask what happened, defendant stated it
was "obvious." Sergeant Bowman
told him it was not obvious because his wife was "somewhere else" and
defendant was "lying here."
Sergeant Bowman asked if they were
arguing in the kitchen and defendant "pulled out a knife." Defendant stated that his wife was arguing
with him but he was not arguing with her; he was pleading with her not to
falsely accuse him of things; and she insisted he was there with a neighbor
pounding nails but refused to show him where so he could fix them. Sergeant Bowman continued to ask defendant to
describe how the injuries happened, stating:
"Mel, how did the injuries happen
If you don't care about anything can you just please tell me how the
injuries happened" Defendant
reiterated that it was obvious. Sergeant
Bowman said defendant was there and why not tell her what happened, and asked
why he stabbed his wife.
name="_ftnref3" title="">[3] Upon further questioning, defendant stated he
did not remember how many times he stabbed his wife; he remembered stabbing
himself; and he used the same knife to stab both his wife and himself. He also elaborated that the knife was the
"biggest one [he] could find."
While the paramedics continued treating him, defendant asked
"Where's that investigator that was here talking to me" Sergeant Bowman told defendant that she was
"right here," and defendant told her that she could talk to the
neighbor across the street about the spots on the wall, and that his wife kept
accusing him "and lying and lying . . . ."
As the
paramedics continued with their preparations, defendant said that he wished
they would not do this because he did not want to be saved. Sergeant Bowman told defendant, "Well,
we have to."
At the end of the interview, an
unidentified male (apparently another officer) asked defendant "what
brought it to this" and if it was an "ongoing thing." Defendant stated his wife had "thrown
[him] out" the previous year, and they went to court and the court evicted
him but then his wife let him return.
When another paramedic asked what caused this today and whether it
"got this bad to the point where it got this violent[,]" defendant
responded that he had already told "the other girl," apparently
referring to Sergeant Bowman.
2.
Trial Court's Ruling Admitting the Recorded Statements
During pretrial motions, defendant
argued that his recorded statements should be excluded from evidence because at
the time of the police questioning he had not been provided
stabbing his wife, and the police questioning pertained to criminal, not
medical, matters. In opposition, the
prosecutor asserted there was no Miranda violation
because defendant had not been arrested and the questioning was merely
investigatory. The prosecutor stated
that the police had been told by defendant's wife that her husband had stabbed
her and he had stabbed himself; when the police found defendant lying in a bed
they set up a tape recorder and asked what happened; the interview lasted for
about 20 minutes and ended when the paramedics removed defendant from the home
and placed him in the ambulance; and defendant was not arrested until one week
later.
After
reviewing the transcript of the recorded interview and hearing the parties'
arguments, the trial court concluded there was no custodial interrogation under
Miranda. The court stated it had "grave
doubts" about defendant's custodial status, noting that he was not
arrested until "some time after that." Further, the court concluded the police were
"still in the investigatory stage" because they only had defendant's
wife's "side of the story"; from their experience they would suspect
they may not have been provided the entire story; and they were trying to
"find out what the rest of it is."
B.
General Miranda Principles
The Miranda
rule implements the Fifth Amendment privilege against self-incrimination by
requiring that statements made during custodial interrogation not be admitted
as evidence of guilt unless the suspect was advised of the right to remain
silent, the right to appointed counsel, and that statements may be used against
him or her. (Berkemer v. McCarty (1984) 468 U.S. 420, 428-429.) The Miranda rule
" 'presume[s] that interrogation in certain custodial circumstances
is inherently coercive' "; accordingly, as a matter of
"preventive medicine," "unwarned statements that are otherwise
voluntary within the meaning of the Fifth Amendment must nevertheless be
excluded . . ." from the prosecution's case-in-chief. (Oregon v. Elstad (1985) 470 U.S. 298, 305,
307.)
The Miranda rule is concerned with the danger that a person will be
induced to make incriminating statements that he or she would not otherwise
make because of the inherently coercive nature of a confined, police-dominated
atmosphere. (Berkemer v. McCarty, supra,
468 U.S. at pp. 437-438; People v. Clark
(1993) 5 Cal.4th 950, 985, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22;
671, 673.) The
trigger Miranda advisements has two
components: custody and
interrogation. (People v. Mosley (1999) 73 Cal.App.4th 1081, 1088-1089.) Custody under Miranda exists if the person has been formally arrested, or the
person has been deprived of his or her freedom of action to a degree associated
with a formal arrest. (
v. Ochoa (1998) 19 Cal.4th 353, 401.)
Interrogation refers to express questioning, or to any words or actions
that the police should know are reasonably likely to elicit an incriminating
response. (People v. Mayfield (1997) 14 Cal.4th 668, 732.)
Physical restraint alone does not
necessarily invoke Miranda
protections; the question is whether the restraint "exerts upon a detained
person pressures that sufficiently impair his free exercise of his privilege
against self-incrimination to require
that he be warned of his constitutional rights." (Berkemer
v. McCarty, supra, 468 U.S. at
pp. 437-440; Wilson v. Coon (8th Cir.
1987) 808 F.2d 688, 689-690.)
required for a temporary investigative detention involving general,
on-the-scene questioning as to facts surrounding a crime, during which the
officer asks " 'a moderate number of questions
to . . . try to obtain information confirming or dispelling
the officer's suspicions.' " (
679.) "Questioning under these
circumstances is designed to bring out the person's explanation or lack of
explanation of the circumstances which arouse[] the suspicion of the police,
and thus enable the police to quickly ascertain whether such person should be
permitted to go about his business or held to answer charges." (People
v. Milham (1984) 159 Cal.App.3d 487, 500.)
The courts reason that general
investigative questioning, as opposed to accusatory questioning, is less likely
to convey that the person is not free to leave. (People v. Bellomo (1992) 10 Cal.App.4th 195, 199;
Cal.App.4th 1151, 1164-1165 [Miranda
not implicated under circumstances of neutral investigative questioning that is
of limited duration and that occurs in nonthreatening or noncompulsive public
environment].) However, custodial
interrogation may occur if the circumstances show the police have "moved
past investigation and into the realm of inculpation." (People
v. Bejasa (2012) 205 Cal.App.4th 26, 37-40 [custodial interrogation
occurred at scene of car accident when police told defendant he was being
detained for possible parole violation, handcuffed him, placed him in patrol
car, and asked him what and how much he had been drinking];
480, 496 [custody status shown by detention after car accident that became
"increasingly coercive," including police conduct of refusing to
allow defendant to walk home after he was examined by paramedics, placing him
in back of patrol car, and driving him to police station]; see also
1165-1166 [custodial interrogation occurred even though defendant agreed to be
questioned at police station; circumstances showed aggressive, confrontational,
intimidating questioning that would have led a reasonable person to believe he
was not free to leave until he satisfied officers' demand for truth].)
The courts examine the totality of
the circumstances to determine whether a custodial interrogation has occurred,
including such factors as the site of the interrogation, whether the person is
aware that he or she is the focus of the investigation, whether objective
indicia of arrest are present, and the length and form of the questioning. (People
v. Milham, supra, 159 Cal.App.3d
at p. 500; see People v. Stansbury
(1995) 9 Cal.4th 824, 830.) No one
factor is dispositive, and the relevant inquiry is whether a reasonable person
in the defendant's position would have felt restrained in a manner that was
tantamount to a formal arrest. (
appeal, we independently determine, based on the undisputed facts and those
properly found by the trial court, whether a custodial interrogation has
occurred. (People v. Ochoa, supra,
19 Cal.4th at p. 402; People v. Mayfield,
supra, 14 Cal.4th at p. 733.)
C.
Analysis
Defendant was detained in a bedroom
in his home while he was being administered emergency medical treatment and
being prepared for transport in an ambulance.
While this was occurring, an officer asked defendant what happened; how
did he and his wife end up with the wounds; and did defendant want to give his
"side of the story." At some
points the questioning was more directive; i.e., asking why defendant stabbed
his wife, whether defendant was "fed up" and "had enough";
whether defendant wanted his wife to leave the planet along with him; and
whether they were arguing that morning and defendant pulled out a knife. The interview ended when defendant was
removed from the room for transport to the hospital in an ambulance.
In several cases involving police
questioning while the defendant was restrained solely for medical purposes, the
courts concluded that the circumstances did not implicate the
inherently coercive police environment that is tantamount to a formal
arrest. (See, e.g., Wilson v. Coon, supra,
808 F.2d at pp. 689-690 [defendant questioned while restrained by ambulance
attendant]; United States v. Martin,
questioned while confined in hospital]; People
v. Mosley, supra, 73 Cal.App.4th
at pp. 1085, 1089-1091 [defendant questioned while lying in ambulance];
in ambulance]; Commonwealth v. LaFleur
(2003) 58 Mass.App.Ct. 546 [791 N.E.2d 380, 381-383] [defendant questioned
while strapped to stretcher].)
In Wilson v. Coon, the court reasoned that a reasonable person would
expect a medically-related detention to last only for the time that is
medically necessary rather than until information is divulged to the
authorities, and the public environment and presence of medical attendants made
the situation less police-dominated. (
Similarly, in Milham, the
court observed that although the defendant may have been physically unable to
leave, this restraint was not imposed because of police conduct, and further
the police did not yet know that criminality was involved in the incident (a
car accident). (People v. Milham, supra,
159 Cal.App.3d at pp. 500-501.) In
not know if the defendant was a victim or a perpetrator of a shooting, the
questioning was in the presence of medical personnel and was not accusatory,
the defendant was not handcuffed, no guns were drawn, and the defendant was
about to be transported to a hospital, not to a police station. (People
v. Mosley, supra, 73 Cal.App.4th
at p. 1091.)
We reach the same conclusion
here. The officers did not suggest to
defendant that he was being detained for stabbing his wife; rather, it is clear
that the sole purpose of the detention was to administer emergency aid and transport
defendant to the hospital due to his injury.
Although the paramedic and the officer told defendant that he had no
choice but to accept their aid and transport to the hospital, this restriction
of defendant's freedom was due to defendant's physical injury and was not based
on an assessment of his guilt. Further,
the overall tenor of the questioning was investigatory, not accusatory. When the police repeatedly asked defendant
what happened and how he and his wife ended up being injured, these questions
did not suggest that defendant was at fault.
Notably, the police were faced with a situation where
and defendant. Even though Penelope had
given a version of the incident suggesting defendant was the aggressor (i.e.,
he stabbed her and he stabbed himself), the police had no way of knowing
whether this factual scenario was accurate.
Although some of the inquiries were drawn from Penelope's version and
were accusatory in nature (i.e., why did defendant stab his wife, and whether
he stabbed her because he was "fed up" and wanted her to "leave
the planet"), the questions were all in the context of requesting that
defendant provide his version of what occurred.
There is nothing in the questions that conveyed to defendant that the
police intended to detain and question him until he admitted his guilt.
Defendant asserts the police
questioning was not merely a preliminary inquiry about what happened because
the police had identified him as a suspect based on his wife's statements, and
they repeatedly asked about the details of the incident and why he stabbed his
wife even though he had demonstrated his reluctance to talk. We are not persuaded. Although conduct by the police suggesting to
the defendant that he or she is a suspect is a relevant factor to consider,
this factor does not, standing alone, establish custodial status. (Stansbury
v. California (1994) 511 U.S. 318, 323-325.) Rather, the circumstances as a whole must
demonstrate that the defendant's freedom of action was restricted to the degree
associated with an arrest. (
Consistent with these principles, the courts have found no custodial
interrogation during a medically-related restraint even though the
circumstances suggested the police had identified the defendant as a suspect. (See, e.g., United States v. Martin,
supra, 781 F.2d at p. 673 [police questioned hospitalized defendant about
explosives found at his apartment; no custodial interrogation occurred because
police were not participants in hospital confinement]; Commonwealth v. LaFleur, supra,
791 N.E.2d at pp. 381-383 [defendant, who was strapped to stretcher at car
accident scene, smelled of alcohol and admitted to emergency personnel that he
had too much to drink; police questioning about his alcohol consumption and
ability to drive was not custodial interrogation].)
Here, the restraints placed on
defendant for the sole purpose of emergency medical treatment were not a
restriction of freedom akin to an arrest.
Further, although the police were trying to persuade defendant to describe
the details of what occurred, this questioning was in the context of asking
defendant to provide his version of the incident during an on-the-scene
investigation immediately after the incident.
Even though some questions invited an incriminatory response, the focus
of the questioning was open-ended and nonconfrontational, asking defendant what
happened. Considering the totality of
the circumstances, defendant was not subjected to the type of restraint or
questioning that conveyed to him that he was, in effect, arrested.
We conclude that a reasonable
person in defendant's position would have understood that he was not in police
custody and that the police were merely asking him to provide his version of
what occurred during the preliminary investigation of the incident. Hence, there was no custodial interrogation
and no error from the trial court's denial of defendant's suppression motion.
II.
Deliberation Does Not Require
Mature
and Meaningful Reflection
Defendant contends the trial court
erred in modifying the standard instructions on premeditation and deliberation
by adding language from Penal Code section 189 stating that mature and
meaningful reflection was not required.
The trial court provided the jury
with standard instructions on deliberation and premeditation, which
stated: (1) deliberation occurs if the
defendant "carefully weighed the considerations for and against his choice
and, knowing the consequences, decided to kill," and (2) premeditation
occurs if "he decided to kill before acting." Further, the standard instructions stated
that a "decision to kill made rashly, impulsively, or without careful
consideration of the choice and its consequences is not deliberate and
premeditated."
title="">[5] (See CALCRIM No. 601.) At the prosecutor's request, the court added
an additional instruction entitled "Mature Reflection Not
Required." The additional
instruction essentially quoted a portion of section 189, stating: "To prove an attempted killing was
'deliberate and premeditated' it shall not be necessary to prove the defendant
maturely and meaningfully reflected upon the gravity of the act."
Objecting to the additional
language, defense counsel argued that it was confusing because the jury would
"equate careful and deliberate and calculated with mature and meaningful,
and then they're going to be told in the next instruction it doesn't have to be
mature and meaningful." The court
rejected this contention, stating:
"It appears to me that the legislative choice to include this
language in [section] 189 is an example of them trying to bring clarity to the
law here. [¶] It would be easy to read the requirement that
the defendant carefully weighed considerations for and against as a requirement
that he exercise mature and meaningful reflection. I think the Legislature expressly says they
don't mean that deliberation requires mature reflection. And it says that in the statute."
On appeal, defendant argues that
the concepts of careful consideration and mature and meaningful reflection are
indistinguishable, and providing instruction on the latter concept diluted the
deliberation/premeditation standard. We
reject this contention. As we shall explain,
the Legislature added language to section 189 to remove the concept of mature
reflection from the definition of premeditation and deliberation. This legislative enactment reflects that
mature reflection represents a higher quality of thought that is
deliberation.
Prior to the abolishment of the
diminished capacity defense which negated specific intent due to a mental
disorder affecting the defendant's mental capacities, the concept of
premeditation and deliberation included a requirement that the defendant could
maturely and meaningfully reflect upon the gravity of the contemplated
act. (People v. Stress (1988) 205 Cal.App.3d 1259, 1269-1270; see 1
Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 22, p.
351.) Under this previous law,
premeditation and deliberation required (1) the careful weighing of
considerations, plus (2) "a quality
of deliberation and weighing . . . described as mature
and meaningful reflection." (
This additional mature reflection requirement allowed "a defense
based on the claim that even though a defendant had carefully planned, and had
considered the consequences of an act, he nonetheless was not guilty of first
degree murder when, because of mental disease or defect, his reflection was not
mature and meaningful." (
However, when the Legislature abolished the diminished capacity defense
in 1981, it added a paragraph to section 189 "specifically stating that it
was unnecessary to prove a defendant maturely and meaningfully reflected on the
gravity of his or her act in proving deliberation and premeditation." (People
v. Stress, supra, at p. 1270.)
Thus, the instruction stating that
premeditation and deliberation does not require mature and meaningful
reflection properly referred to an element that has been affirmatively removed
from the premeditation/deliberation standard, and the instruction did not
dilute the careful consideration element that defines
premeditation/deliberation. The
California Supreme Court reached essentially the same conclusion in
936. The Smithey court rejected the defendant's assertion that instructing
the jury that he need not have maturely reflected in effect told the jury that
he could be convicted of first degree murder even if he acted "with little
thought or regard for the consequences."
(Id. at p. 980.) The court reasoned there was no reasonable
likelihood the jury interpreted the instruction in this manner, stating that
the phrase "mature and meaningful reflection" contained commonly
understood terms, and the premeditation/deliberation instruction as a whole
"made clear that reflection must have preceded commission of the crime and
could not have been unconsidered or rash, but rather must have resulted from
careful thought and a weighing for and against the chosen course of
action." (Id. at pp. 980-981.)
Consistent with
not err in instructing the jury that for premeditation and deliberation the
defendant need not have maturely reflected on the gravity of his act.
Defendant also contends that even
if an instruction stating that the defendant need not maturely reflect might be
appropriate in cases where the defendant relies on a "diminished
actuality" defense (as was the situation in Smithey), if no such defense is presented the additional
instruction is irrelevant and confusing.
Notwithstanding the abolishment of the diminished capacity defense, a
defendant may still present a diminished actuality defense based on a claim
that due to a mental disorder he or she did not actually form the specific
intent required for the offense. (See 1
Witkin & Epstein, Cal. Criminal Law,
supra, Defenses, § 23, p. 353.)
name="_ftnref6" title="">[6] Here, defendant did not claim he had a mental
disorder that obviated premeditation and deliberation, but he did claim he did
not premeditate and deliberate because his conduct was irrational and showed
that "he lost control of his emotions."
there was no premeditation and deliberation because his mental functioning was
less than fully rational at the time of the stabbing, it was appropriate to
provide a clarifying instruction stating that the defendant need not engage in
mature and meaningful reflection in order to premeditate and deliberate.
In support of his contention that
the additional instruction should not have been provided to the jury, defendant
cites People v. Dunkle (2005) 36
Cal.4th 861, 910-912.
name="_ftnref8" title="">[8] In Dunkle,
the court found no error in failing to instruct on the mature and meaningful
reflection requirement in a case involving a murder committed when the
diminished capacity defense was still recognized. (People
v. Dunkle, supra, at pp.
910-912.) The Dunkle court reasoned that the evidence did not support a
diminished capacity defense and there was "no case requiring an
instruction on 'mature and meaningful reflection' outside the context of a
diminished capacity defense." (
need not instruct on mature reflection absent a diminished capacity defense,
does not mean that under current law a trial court errs by generally informing
the jury that there is no mature reflection requirement. In any event, assuming that the concept of
mature reflection is relevant only when the jury is presented with a defense
related to a mental disorder, defendant's claim of distorted thinking is
sufficient to support the relevancy of the additional instruction in this case.
Alternatively, assuming arguendo
the trial court should not have given the additional instruction due to lack of
relevancy, the error was harmless even under the stricter harmless beyond a
reasonable doubt standard. (See
154.) As stated, the additional
instruction did not dilute the premeditation/deliberation standard. Further, reading the instructions as a whole,
the standard instructions clearly apprised the jury that to find premeditation
and deliberation the defendant must act with careful consideration and
reflection, rather than rashly or impulsively.
There is no reasonable possibility that the additional instruction
stating that the reflection need not be mature caused the jury to ignore this
distinction between a considered act and an impulsive act when deciding the
issue of premeditation and deliberation.
III. Instruction
on Uncharged Domestic Violence or Elder Abuse
Defendant
asserts the trial court violated his due
process rights by providing a standard instruction to the jury concerning
the use of the uncharged April 16, 2007 incident of domestic violence and/or
elder abuse as propensity evidence.
Using the language of CALCRIM Numbers 852 and 853, the court told the
jurors that if they found the incident of prior domestic violence and/or elder
abuse true by a preponderance of the evidence, they "may, but are not
required to, conclude from that evidence that the defendant was disposed or
inclined to commit such acts, and based on that decision, also conclude that
the defendant was likely to commit and did commit" the charged
crimes. The instruction also cautioned
the jurors that any conclusion that defendant committed the uncharged domestic
violence and/or elder abuse "is only one factor to consider along with all
the other evidence. It is not sufficient
by itself to prove that the defendant was guilty of the crimes. The People must still prove each charge
beyond a reasonable doubt."
Defendant
asserts the instruction is likely to mislead the jury about the prosecution's
burden of proof because it permits a finding of guilt based on a mere
likelihood from prior misconduct found true by a preponderance of the
evidence. Further, he contends the
instruction is confusing because it first tells the jury it can use the uncharged
misconduct to find him guilty of the charged offenses, and then it states in
contradictory fashion that the uncharged misconduct is not sufficient to prove
defendant's guilt of the charged offenses.
Recognizing that the California Supreme Court has rejected essentially
the same contentions in People v.
defendant states that he is raising the argument for purposes of preserving his
right to further federal review.
In Reliford, the court reviewed a similar CALJIC instruction and
concluded it was not likely to mislead the jury concerning the prosecution's
burden of proof. (People v. Reliford, supra,
29 Cal.4th at pp. 1011-1012.)
did not permit the jury to base a conviction solely on the uncharged misconduct
evidence, but rather expressly stated the uncharged misconduct evidence was not
sufficient by itself to prove guilt of the charged offense beyond a reasonable
doubt. (Id. at p. 1013.) Further,
the instruction did not suggest that the preponderance
of the evidence standard applied to anything other than the preliminary
determination whether the defendant committed the uncharged misconduct. (Id.
at p. 1016.)
Likewise here, the instruction set
forth the preponderance of the evidence standard only for the uncharged
misconduct evidence; clearly explained that the uncharged misconduct evidence
was only one factor that may be considered and was not alone enough to convict;
and emphasized that the prosecution must prove the charged crimes beyond a
reasonable doubt. The instruction was
not misleading or confusing and it did not violate defendant's due process
rights. (Accord, People v. Johnson (2008) 164 Cal.App.4th 731, 738-740;
246, 250-253; see also People v. Loy
(2011) 52 Cal.4th 46, 71-77.)
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
name="_ftn1" title="">[1] Miranda
v. Arizona (1966) 384 U.S. 436.
name="_ftn2" title="">[2] Penelope was talking to Lopez in the
living room on a "land line" and there was another phone on this line
in defendant's room.
