P. v. Cato























Filed 4/2/13 P. v. Cato CA2/2

>

>

>

>

>

>

>

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
TWO




>

THE PEOPLE, Plaintiff and Respondent, v. MICHELLE CATO, Defendant and Appellant.

B238217 (Los Angeles County Super. Ct. No. BA365074)

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

Craig Richman, Judge.
Affirmed.



Eric R.
Larson, under appointment by the Court of Appeal, for Defendant and Appellant.



Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________

>

A jury
convicted defendant Michelle Cato of one count of href="http://www.mcmillanlaw.com/">second degree murder in violation of
Penal Code section 187, subdivision (a)href="#_ftn1" name="_ftnref1" title="">^[1] (count 1) and one count of attempted murder in
violation of sections 664 and 187, subdivision (a) (count 2). The jury found that in the commission of
count 1, defendant personally used a firearm, personally and intentionally
discharged a firearm, and personally and intentionally discharged a firearm
causing death within the meaning of section 12022.53, subdivisions (b), (c),
and (d). In count 2, the jury found the
firearm allegation pursuant to section 12022.53, subdivision (b) true, but
found the allegations pursuant to section 12022.53, subdivisions (c) and (d)
not true.

The trial
court sentenced defendant to a total term of 57 years to life in state
prison. In count 1, the court imposed a
15-years-to-life term, plus 25 years to life pursuant to section 12022.53,
subdivision (d). In count 2, the court
imposed a consecutive seven-year term, plus 10 years pursuant to section
12022.53, subdivision (b).

Defendant
appeals on the grounds that: (1) the trial court prejudicially erred by
improperly restricting her proffered psychiatric expert testimony in support of
her claim of imperfect self-defense; and (2)
the trial court prejudicially erred by refusing to instruct the jury on
the lesser included offenses of voluntary
manslaughter and attempted voluntary manslaughter based on sudden quarrel.

FACTS

Prosecution Evidence

On the
morning of November 21, 2009,
Earley Nicolis went to a park located at Fifth Street
and San Julian Street in Los
Angeles. There,
he saw defendant, whom he had known and seen at the park for approximately one
and a half months. Nicolis sat down at a
table in the park with defendant, Chevon Quinn, and another friend called
Dmya. Nicolis received a phone
call. After he hung up, he discussed the
call with Quinn and then called his godsister, “Pocahontas,” to discuss it with
her.

While
Nicolis spoke with Pocahontas, defendant interrupted and told Nicolis that he
had said something that was incorrect.
Nicolis said he had not, and defendant contradicted him. Nicolis asked, “Why are you in my phone
conversation in the first place?”
Defendant replied, “Because I can.”
She seemed angry, and an argument ensued. During the argument, defendant “began saying
‘Avalon.’” Nicolis said, “I don’t give a
fuck what you talkin’ about.” Defendant
said, “You disrespectin’ me.” Pocahontas
said to Nicolis on the phone, “You know she from Avon.” “Avon” is a term of disrespect used to
describe Avalon Gardens gang members.
Nicolis then said, “I don’t give a fuck if she from Avon.” At that point, defendant took a swing at
Nicolis, but she missed. Defendant then
left the park saying, “I’ll be right back.”

Nicolis had
parked his red Pontiac about two blocks from the park. When he returned to his car about three hours
later, he found it had been vandalized.
The windshield was broken, and the phrase “A’s Up” was scratched into
the hood and side of the car. Nicolis
testified that, a few weeks before his argument with defendant, defendant had
seen Nicolis stopped at a red light.
Defendant had said, “Hey, you have a nice car.”

Two days
after the argument, at approximately 3:40 in the afternoon of November 23,
2009, Nicolis returned to the park and sat down at a table with Quinn and
Nicolis’s mother, Sheila Zaldana. When
defendant arrived with another female, Dominique, Nicolis approached defendant
at the park entrance. Defendant did not
appear to be intoxicated. Nicolis asked
her why she had keyed his car. Defendant
replied, “Because you disrespected me.”
Defendant reached in her waistband for a small knife that she had. Nicolis said, “I don’t give a fuck about your
knife. You are going to jail for
vandalizing my car.” Defendant then
showed Nicolis a gun in the right side of her waistband. She kept it in her waistband but grabbed the
trigger. By this time, Quinn and Zaldana
were standing near Nicolis. Nicolis
said, “She has a gun.” Quinn said, “Call
the police.”

Nicolis
took out his cell phone and called 911.
As he spoke with the dispatcher, he followed defendant out of the park
because she was walking away. Defendant
walked around a porta-potty and then south on San Julian Street toward Sixth
Street. Nicolis followed her at a
distance of approximately 15 feet.
Zaldana and Quinn followed Nicolis.


Defendant
talked on a cell phone as she walked. At
some point, defendant turned around and “tried to pull the trigger” on Nicolis.
The gun did not fire. Zaldana said, “Run, Earley.” Defendant said “Run?” as if to say “you got
the nerve to tell him to run.” Nicolis
demonstrated how defendant simultaneously chambered a round in her handgun and
said that she “cocked” the gun. As defendant
was doing this, Zaldana said, “‘You are not going to kill my son. You got to kill me first.’” Defendant lunged forward toward Zaldana and
pulled the trigger. Defendant shot
Zaldana in the head. Zaldana took two
steps back and fell. When Nicolis saw no
movement by his mother, he began running after defendant, who had fled as soon
as she pulled the trigger. A
surveillance recording from a camera at 523 San Julian Street captured the
shooting and was played for the jury.

Defendant
ran to Sixth Street and turned right.
Nicolis was at a distance of approximately 46 feet behind her. Defendant did not look back. Nicolis saw her throw the gun down and slow
her pace to a walk.

Nicolis and Quinn were walking in
the middle of the street. While pointing
at defendant, they waved their arms to Officer Mario Ontiveros of the Los
Angeles Police Department (LAPD), who was passing on his motorcycle. Quinn said defendant had a gun, and the
officer drew his firearm and detained defendant. Nicolis ran up to them while screaming, “She
just shot my mom in the head.” Nicolis
and defendant began to fight, and the officer separated them. Other officers arrived and asked Nicolis
where the gun was. Nicolis said that
defendant threw the gun away near the corner.
He showed LAPD Detective Charles Baley where he had seen the gun
drop. Detective Baley found the chrome
semiautomatic handgun. The gun was
loaded with three CCI .25-caliber ball point bullets, including one in the
chamber. LAPD Officer Paul Valencia
searched defendant for weapons and found a silver folding knife in her front
pants pocket. LAPD Detective Thayer Lake
investigated the crime scene and recovered a .25-caliber bullet casing from a
gutter just south of 523 San Julian Street.
He did not find a knife on Zaldana, and he saw no knife near the body.

LAPD
Officer Kevin Study was one of the officers who helped Officer Ontiveros detain
defendant. He and his partner drove
about a block to 523 San Julian Street, near the corner of Fifth Street, as
directed by Nicolis. They found Zaldana
lying on the sidewalk, unresponsive, not breathing, and bleeding from the
head. Officer Study set up a crime scene
and called 911. Zaldana died from a
gunshot wound to her right temple.

Detective
Lake spoke with defendant at 9:30 p.m. on the day of the shooting. She did not appear to be under the influence
of any drugs. Officer Ontiveros also
testified that defendant did not appear intoxicated when arrested.

At
approximately 10:00 p.m. on the day of her arrest, defendant was in a holding
cell at the LAPD central station. LAPD
Officer Angel Guerra searched the holding cell after defendant was removed and
found a CCI .25-caliber ball point bullet wedged between the bench and the
wall.

Nicolis
acknowledged that he had a pocket knife on him during the incident. He did not display it to anyone or use
it. To his knowledge, his mother and
Quinn had no weapons. At no time during
the incident did he threaten defendant with doing anything other than calling
the police on her. Neither Zaldana nor
Quinn threatened defendant.

Firearms
expert Carole Acosta inspected the gun found at the corner of San Julian and
Sixth Streets and found that it fired only intermittently, possibly due to dirt
and other defects. She stated that the
shell casing found at the shooting scene was fired from this handgun. She concluded that one of the bullet
fragments found in Zaldana’s body was fired from this firearm. The gun required at least four and
three-quarters pounds of pressure on the trigger in order to fire.

Officer
Armando Leyva testified as a gang expert.
He described aspects of gang culture and stated that the Avalon Gardens
Crips gang consists of 160 members. “A’s
up” is a greeting among Avalon gang members, and “Avon” is a disrespectful term
for them. Defendant had many gang
tattoos on her arms, photographs of which were shown to the jury. Officer Leyva believed that defendant was an
active gang member and committed the shooting for the benefit of the gang.

Defense Evidence

Defendant
testified that in November 2009 she was friends with Nicolis, Zaldana, and
Quinn. On the morning of November 21,
2009, she drank and smoked marijuana.
When she and Nicolis got into an argument about what he had said over
the telephone to Pocahontas, she and Quinn were joking about it, but Nicolis
was upset. He said he did not have to
explain himself “to no bitch,” and “This is Hoover business.” He said, “I don’t give a fuck about an
Avon.” Then he kicked defendant under
the table, and she stood up and swung at him but missed. Defendant did not feel comfortable anymore,
so she walked to her car and left. She
denied vandalizing Nicolis’s car that day or at any time.

On November
23, 2009, at about 2:30 p.m., a friend named Dominique drove defendant to the
park at San Julian and Sixth Streets.
They had been drinking, and they smoked a blunt. Defendant was carrying a box cutter and a
gun. She carried them because she had
been robbed and beaten up in the area.
Before she got to the entrance of the park, Nicolis approached. He, Zaldana, and Quinn stopped
defendant. Nicolis said, “Why the fuck
did you scratch my car? You are gonna pay
for it.” Defendant replied, “I didn’t.”
Nicolis, Zaldana, and Quinn all said that defendant “scratched his car
up.” Defendant turned and walked away
toward Wall Street. When Nicolis and
Quinn blocked her path, defendant turned and tried to beat them to San Julian
Street. When Nicolis and Quinn blocked
her path again, defendant pulled out her box cutter, which was folded. Nicolis loudly said, “I don’t give a fuck
about that knife, bitch,” and pulled out his own knife. Zaldana and Quinn each had a knife as well.

Defendant
put her knife away and tried again to leave toward Wall Street, but the three
cut her off again. Defendant told
Dominique to get her car so that defendant could get out of there. Dominique left, and Nicolis said, “You not
goin’ nowhere without payin’ for my car.”
Defendant tried to call her mother with her cell phone, but she could
not reach her. Near the corner of San
Julian and Fifth Streets, she lifted her shirt to show the gun in her
waistband. Nicolis called out to Quinn,
“This bitch got a gun.” Quinn said,
“Call the police on this bitch.”

While
Nicolis and Quinn were talking to each other, defendant was able to get to San
Julian Street, and she began walking quickly toward Sixth Street. Nicolis followed, saying, “You ain’t gonna
get away with this shit. You go pay for
my window.” Defendant heard him say,
“When you get out the eye of the camera, I’m a blow your head off.” When he said that, defendant “freaked out”
and “blacked out.” It “register[ed]”
with defendant because she used to work security and patrol that area. She “sort of” had a sense of where the
cameras were. If she had taken a step
further, she would have been out of the eye of the camera. She turned around and pointed the gun at
Nicolis to scare him. She turned to walk
away again and she heard Nicolis say he was going to “blow her head off,” so
she turned back again. She was scared
and the gun went off. There was silence
for a couple of seconds and then Nicolis and Quinn started chasing her
again. She believed Nicolis had a gun on
him because he said he was going to blow her head off.

Defendant
stated that she had been raped and molested when she was 12 and again when she
was 15 and 17. She was beaten up a
couple of days prior to the shooting incident.
She took several drugs, including PCP, crystal methamphetamine,
marijuana, and alcohol. Being chased
made her flash back to all the times that someone had put hands on her or she
had been beaten or threatened. She felt
that Nicolis was going to try to kill her.
Defendant said the gun went off because she was scared. She heard it go off after she had already turned
around. She denied that she tried to kill anyone that day. Defendant thought that her life was in danger
and that it was necessary to shoot Nicolis.
Defendant had seen Nicolis get into a fight with two girls in October
2009. This made her afraid of Nicolis
because “he’s quick to fight girls.” She
knew that Nicolis carried pepper spray and a knife. Defendant was not so drunk that she did not
know what she was doing.

Defendant
stated that she was affiliated with the Avalon Gardens Crips gang because she
grew up in the Avalon Gardens projects.
She no longer lived in the gang’s territory and was not an active
member. She had acquired her tattoos
over seven years earlier. The tattoos
merely showed where she grew up.

Defendant
had carried the handgun for protection for five months before the
shooting. She had never shot it before
and did not know how to load it. She did
not know if it was loaded when she pulled the trigger. Defendant said that she did not pull the
trigger on purpose, and she did not pull it more than once. Defendant denied being placed in a holding
cell on the day of the shooting.
Defendant acknowledged that she had a 2006 conviction for href="http://www.mcmillanlaw.com/">possession of a firearm by a felon and a
2008 conviction for possession of marijuana for sale.

LAPD
Detective Camille Armstead interviewed Nicolis and Quinn on November 23,
2009, at 4:15 p.m. Nicolis did not tell
her that he was carrying a knife.
Nicolis said that defendant was the only person to have a weapon at the
time of the shooting.

A recording
of a 911 call made by the person reporting Zaldana’s shooting was played in
court. The transcript of the call
reveals that a male voice is heard to say, “. . . don’t touch the knife.”

Dr. Ronald
Markman, a psychiatrist, discussed posttraumatic stress disorder (PTSD)
resulting from domestic violence. He
stated that a person with a history of drug abuse, who had been a victim of
sexual assault, might perceive things differently than someone else. That person might also act out in highly
impulsive and self-protective ways.
Persons with dysfunctional backgrounds can still form an intent to kill.

Prosecution Rebuttal Evidence

Detective Lake examined the crime scene around the
victim’s body. He did not find a
knife. No knife other than the one found
on defendant was booked into evidence in this case.

Officer
Chris Reza testified that on March 3, 2009, while on patrol, he arrested
defendant in an unrelated incident near the Avalon Gardens housing development. Officer Reza saw a Black male holding his
waistband run toward and enter the open passenger door of a car. Officer Reza and his partner followed the
car. It eventually stopped and all of
the occupants except the driver fled.
Defendant was one of those who fled, and Officer Reza found her hiding
in a bush nearby. Along the path that defendant had taken, Officer Reza found a
.25-caliber semiautomatic handgun that was missing its magazine. The magazine, loaded with six live rounds,
was later recovered. While testifying in
that case, defendant admitted to being an Avalon gang member.

Officer
Ontiveros observed defendant walking just before he took her into custody. She did not stagger, smell of alcohol, or
slur her words. Defendant exhibited no
signs of alcohol consumption at all when she was detained. He observed her for approximately 15 minutes.

DISCUSSION

I. Restriction of Defense Psychiatric Expert
Testimony

>A. Defendant’s Argument

Defendant
contends that the trial court improperly restricted her proffered expert
psychiatric testimony. The limitations
imposed by the court prevented defendant from fully presenting her claim of
imperfect self-defense, which was otherwise viable. Defendant argues that, because the error
struck at the heart of her defense, it warrants reversal of her conviction
under the standard of People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson).

>B. Proceedings Below

Near the
close of the prosecution case, the trial court conducted an Evidence Code
section 402 hearing on the issue of Dr. Markman’s proposed testimony for the
defense, to which the prosecutor had objected.
Defense counsel argued that Dr. Markman would testify to the basis for a
defense of imperfect self-defense (a Flannel
defense).href="#_ftn2" name="_ftnref2" title="">^[2] He would not testify to the ultimate issue of
the defense, i.e., that defendant honestly believed in the need to defend
herself. Dr. Markman would also discuss
the facts and circumstances behind his opinion.
Counsel explained that defendant was molested when she was 12, was raped,
and was beaten up two days prior to the November 21, 2009 shooting. Dr. Markman was familiar with the police
reports and defendant’s preliminary hearing testimony related to these prior
incidents. After consultation with Dr.
Markman, defense counsel stated, “what he’s saying is that, generally speaking,
somebody that experienced what she experienced could very well have these types
of fears,” and that her fear would be reasonable under the circumstances. The prosecutor interjected that Dr. Markman would
not testify about “some PTSD defense, or that we are going to get a whole life
history of her through the doctor to explain why she might have been quicker on
the trigger under these circumstances.
There’s nothing in the report that indicates that.”

The trial
court stated it had not read the Cortez
case cited by the prosecutor.href="#_ftn3"
name="_ftnref3" title="">^[3] The court noted that Dr. Markman’s later
report of October 13, 2011, stated that his opinion in the first and lengthier
report of July 18, 2011, remained unchanged:
“that Ms. Cato likely lacked the capacity to deliberate based on her use
of alcohol and marijuana on the day in question.” Dr. Markman additionally stated that “the
issues of heat of passion or a Flannel
defense, i.e., an unreasonable belief reasonably held, are viable positions
based on her past history of victimization, but as ultimate issues they are
decisions left to the trier of fact, i.e., the judge and/or the jury.”

The court
pointed out that Dr. Markman’s first report of July 13, 2011, stated that “‘based
upon my evaluation and review of the available record, there is no data to
suggest diminished actuality, i.e., an inability to premeditate, deliberate,
harbor malice aforethought, and the intent to kill as a result of an underlying
mental disorder. But it would appear
that Ms. Cato’s ability to deliberate was impaired as a result of her acute
alcohol/ P.C.P. use.’ It then goes on to
state, ‘There are, however, three additional psychiatric legal positions that
are viable, the first that Ms. Cato was acting in self-defense based on the
aggressive behavior of the alleged victims.
The second, a Flannel defense
indicating that she [had] an unreasonable but honest belief that she had to
defend herself based on past experience with the alleged victims, thereby
negating malice aforethought. And a,
third, a heat of passion explanation as a result of the confrontation with
people she felt were there to harm her.’
So I’m not really certain which of those three Dr. Markman’s testimony
would go to, since we are not talking about past experiences with the alleged
victims that I’m aware of.”

Dr. Markman
then testified at the Evidence Code section 402 hearing. After expressing his opinion, the trial court
asked him, “So your opinion is based solely—and if I could paraphrase what you
are saying. And correct me if I’m
wrong—that she had diminished actuality based upon alcohol and drug
abuse?” Dr. Markman answered, “Yes.” Dr. Markman added that “when you have an
individual with the history that she presented, there are very—there are very,
very sound arguments that can be presented for those. And I would talk in general terms, but not
specifically for—for this—this—” The
court asked, “To the facts of this case?”
Dr. Markman replied, “because I am precluded from doing so.”

The court
stated, “Under those circumstances, should Ms. Cato testify that she had a
history of drug and alcohol abuse, including on the day in question, and should
she testify to all of the other factors considering her alleged rape and child
molestation—and I’m not certain whether those are the same incident or not—I
will allow Dr. Markman to testify in general terms how incidents such as those
would affect a person’s honest ability to perceive threats. Right, Dr. Markman? That’s what you are telling me?” Dr. Markman replied, “Yes.”

On the
following day, during cross-examination of defendant, href="http://www.fearnotlaw.com/">defense counsel and the prosecutor again
argued before the court regarding Dr. Markman’s proposed testimony. The trial court stated that Dr. Markman could
not render an opinion based upon the specific facts involving defendant. The court believed Dr. Markman would testify
to the fact that defendant has some kind of PTSD or something like that. And that was all that he would be allowed to
testify to—to say that persons who have those kinds of psychological or
psychiatric problems react in certain ways to certain stimuli. The prosecutor argued, “He can’t use it in
terms of her. That was the court’s
ruling. The court stated, “ . . . it
cannot apply directly to her. It can
only be a general description of posttraumatic stress disorder or battered wife
syndrome, or whatever he’s going to proffer as the clinical title of whatever
he’s diagnosing Ms. Cato to try to explain.”

With the
jury present, on direct examination by defense counsel, Dr. Markman testified
that he was familiar with the facts of defendant’s case from reviewing multiple
police reports, transcripts of court proceedings and interviews with defendant,
mental health records, and the murder book.
Defense counsel asked Dr. Markman if some of the patients he dealt with
who have mental disorders were also victims, such as victims of sexual assaults
and general assaults. Dr. Markman said
they were—such as in domestic assaults within families. He testified that PTSD occurs any time a
person is faced with a life-threatening situation either to himself or a loved
one. He said that PTSD “is a very highly
likely diagnosis” and “we see that very commonly in young men who . . . have
seen military action.” When requested by
defense counsel, he explained battered women’s syndrome to the jury.

Dr. Markman
said he had interviewed defendant one time.
When asked his opinion as to whether, generally speaking, someone who
might have a history of alcohol and drug abuse or been the victim of assault,
might perceive things differently than someone else, Dr. Markman said it
depended on the situation. Obviously,
dysfunctional events in a person’s upbringing have a major impact on his or her
ability to interact and solve problems.
Many times the solutions are dysfunctional. When asked if such persons can perceive
things differently, he replied, “Yes.”
He stated that they can act out in highly impulsive and self-protective ways. “They misinterpret events in their immediate
environment. Particularly, if they—if
they have been repeatedly abused, they see the world as an abusive place, and
they have a very difficult time making contact in a positive manner with anyone
in general.” Defense counsel asked if
they can overreact to a different situation than someone else, and Dr. Markman
replied that they can, depending on the perception that they have. They might do things that other people would
not do given the same set of circumstances.
The defense asked no further questions.

On
cross-examination, the prosecutor stated, “And the two basic descriptions that
you have given for people in these, as you put it, ‘dysfunctional
circumstances,’ you gave two general descriptions of someone with posttraumatic
stress. Is that correct?” Dr. Markman replied, “I was speaking in
generalities. But I’ve mentioned
posttraumatic stress.” The prosecutor
asked Dr. Markman to clarify if battered women’s syndrome involved a cycle of
abuse in a domestic ongoing “live-in” relationship, and the doctor confirmed
that it did. He stated, “I was just
answering the questions I was asked.”
Dr. Markman confirmed that a dysfunctional background can have a major
impact on a person. The prosecutor elicited
from Dr. Markman, who is an attorney as well, that people from difficult
backgrounds or who have been abused can still form an intent to kill,
deliberate in the legal sense, and carefully weigh considerations for and
against the choice whether to kill. The
prosecutor also elicited that the ultimate question of the defendant’s state of
mind was for the jury to decide and it was not the doctor’s opinion to give.

>C. Relevant Authority

We review a
trial court’s ruling on the admissibility of evidence questions for an abuse of
discretion. (People v. Hoyos (2007) 41 Cal.4th 872, 898.) A trial court’s ruling will not be disturbed
unless it exercised discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice. (People
v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on another point in >People v. Rundle (2008) 43 Cal.4th 76,
151.)

Section 25
provides that evidence concerning a defendant’s “intoxication, trauma, mental
illness, disease, or defect shall not be admissible to show or negate capacity
to form the particular purpose, intent, motive, malice aforethought, knowledge,
or other mental state required for the commission of the crime charged.”

Section 28
provides that “[e]vidence of mental disease, mental defect, or mental disorder
shall not be admitted to show or negate the capacity to form any mental state,
including, but not limited to, purpose, intent, knowledge, premeditation,
deliberation, or malice aforethought, with which the accused committed the
act. Evidence of mental disease, mental
defect, or mental disorder is admissible solely on the issue of whether or not
the accused actually formed a required specific intent, premeditated,
deliberated, or harbored malice aforethought, when a specific intent crime in
charged.”

Section 29
provides that, in the guilt phase of a criminal trial, “any expert testifying
about a defendant’s mental illness, mental disorder, or mental defect shall

not testify as to whether the defendant had or did not have
the required mental states . . . for the crimes charged. The question as to whether the defendant had
or did not have the required mental states shall be decided by the trier of
fact.”

>C. No Prejudicial Error or Abuse of Discretion

The leading
California Supreme Court case on the application of sections 25, 28, and 29 is >People v. Coddington (2000) 23 Cal.4th
529, overruled on another point in Price
v. Superior Court (2001) 25 Cal.4th 1046, 1069 (Coddington). In that case,
before the guilt phase of a capital murder trial, the court ruled that the
defense could offer relevant evidence on mental defect or disease. (Id.
at p. 582.) However, neither party could
ask the psychiatric expert about whether or how any defect or disease would
affect the defendant’s mental state or actuality or if it would impair his
ability to form intent or to deliberate or premeditate, unless the expert
testified outside the presence of the jury that he believed the defendant did
not have the required mental state. (>Ibid.)
The California Supreme Court found this ruling was an overly restrictive
reading of the statutory limitations. (>Ibid.)

>Coddington explained: “Sections 28 and 29 permit introduction of
evidence of mental illness when relevant to whether a defendant actually formed
a mental state that is an element of a charged offense, but do not permit an
expert to offer an opinion on whether a defendant had the mental capacity to
form a specific mental state
or whether the defendant actually harbored such a mental state. An expert’s opinion that a form of mental
illness can lead to impulsive behavior is relevant to the existence >vel non of the mental states of
premeditation and deliberation regardless of whether the expert believed
appellant actually harbored those mental states at the time of the
killing.” (Id. at pp. 582-583, fn. omitted.)
“Sections 28 and 29 do not preclude offering as a defense the absence of
a mental state that is an element of a charged offense or presenting evidence
in support of that defense. They
preclude only expert opinion that the element was not present.” (Id.
at p. 583.) The Coddington court ultimately concluded that the trial court’s
erroneous ruling did not justify a reversal of the judgment, since the
defendant could have presented evidence of his mental illness at the guilt
phase, but he did not, and the issue was therefore not properly preserved. (Id.
at pp. 583-584.) Even assuming error, it
was not prejudicial because there was no evidence that mental illness affected
the defendant’s ability to premeditate and deliberate, and the facts showed
extensive evidence of premeditation and deliberation. (Id.
at p. 584.)

>People v. Aris (1989) 215 Cal.App.3d
1178 (Aris), disapproved on another
point in People v. Humphrey (1996) 13
Cal.4th 1973, 1089, held that the trial court properly excluded proposed expert
testimony that the defendant shot the victim in honest self-defense while he
slept and that this was reasonable. (>Id. at p. 1194.) The Aris
court deemed it erroneous, however, “not to permit [the expert] to testify,
based on her experience and BWS [battered woman syndrome] theory, as to how the
defendant’s particular experiences as a battered woman affected her perceptions
of danger, its imminence, and what actions were necessary to protect
herself.” (Id. at p. 1198.) The
proposed testimony that the defendant was a battered woman and how this
affected her perceptions and conduct “stops short of the ultimate issue of what
defendant’s perception actually was and, therefore, does not violate section
29.” (Ibid.) The testimony was
relevant to show that the defendant genuinely believed she was in imminent
danger of serious bodily injury. (>Id. at p. 1199.)

>People v. Nunn (1996) 50 Cal.App.4th
1357 (Nunn) offers a concrete example
of the statutory limits on an expert’s opinion regarding the defendant’s state
of mind. The Nunn court stated that Penal Code sections 28 and 29 “allow the
presentation of detailed expert testimony relevant to whether a defendant
harbored a required mental state or intent at the time he acted.” (Nunn,
at p. 1365.) The court went on to
conclude that “it was permissible for Dr. Lipson to opine that appellant,
because of his history of psychological trauma, tended to overreact to stress
and apprehension. It was permissible for
him to testify such condition could result in appellant acting impulsively
under certain particular circumstances.
Dr. Lipson could have evaluated the psychological setting of appellant’s
claimed encounter with the men at the fence and could have offered an opinion
concerning whether that encounter was the type that could result in an
impulsive reaction from one with appellant’s mental condition. What the doctor could not do, and what the
defense proposed he do here, was to conclude that appellant had acted
impulsively, that is, without the intent to kill, that is, without express
malice aforethought. The court acted
properly in excluding Dr. Lipson’s opinion that appellant fired his weapon
impulsively.” (Ibid.)

Defendant
chiefly relies on People v. Cortes,> supra, 192 Cal.App.4th 873 (Cortes),
which, in addition to its own analysis of the issue, summarized the facts and
reasoning of other leading cases, such as Coddington,
Nunn, Aris, and several others. (>Cortes, at pp. 902-908.) Cortes
observed that “[n]o case has been cited to us, nor have we found one ourselves,
which even remotely suggests that it is proper under sections 25, 28, and 29 to
preclude all testimony about the
accused’s own diagnosis, or mental condition, at the time of the offense, but
instead limit the expert’s testimony to diagnoses or mental conditions ‘in the
population at large,’ and their ‘effects on a general person’s behavior who
might have that symptom.’” (>Cortes, at p. 909.) The Cortes
court stated that, “sections 28 and 29 do not prevent the defendant from
presenting expert testimony about any psychiatric or psychological diagnosis or
mental condition he may have, or how that
diagnosis or condition affected him at the time of the offense, as long as
the expert does not cross the line and state an opinion that the defendant did
or did not have the intent, or malice aforethought, or any other legal mental
state required for conviction of the specific intent crime with which he is
charged.” (Cortes, at p. 908, italics added.)


In >Cortes, the defendant was charged with
the stabbing death of the victim. The
court held that the trial court abused its discretion in limiting the testimony
of a psychiatric defense expert to the subject of dissociation and PTSD in
general, and excluding any testimony at all about the defendant’s mental
condition and the effect on him at the time of the offense. (192 Cal.App.4th at pp. 892, 909.) According to Cortes, in all of the cases it cited, “evidence was presented from
which the jury could have properly inferred, from testimony that fell short of
expressing an opinion that the defendant lacked the specific intentional state
required for the charged crime, that the defendant actually lacked such
intent.” (Id. at p. 912.) Such
testimony is not prohibited by sections 25, 28, and 29, but is exactly the type
of testimony sections 28, 29, and the case law permit. (Cortes,
at p. 912.)

In the
instant case, it appears the trial court and the parties became mired in the
“legal ‘bog’” that is demarcated by sections 25, 28, and 29. (See Nunn,
supra, 50 Cal.App.4th at p.
1364.) As explained in >Nunn, section 28 permits a qualified
expert to testify that a defendant suffers from a particular mental defect,
disorder, or disease and to describe and explain the symptoms and effects of
the condition, including the types of behavior or mental processes that can be
expected from people suffering from the particular condition or conditions, and
the actual effects of the condition or conditions on the defendant. The consequences of the condition must, of
course, be relevant to “whether a defendant harbored a required mental state or
intent at the time he acted.” (50
Cal.App.4th at p. 1365.) Here, the final
ruling by the trial court limited Dr. Markman to testifying to a general
description of whatever the doctor labeled defendant’s “diagnosis,” and to
saying that persons who have “those kinds of psychological or psychiatric
problems” react in certain ways to certain stimuli, and it prohibited the
doctor from applying it directly to defendant.
Therefore, the ruling constituted an abuse of discretion.

The issue
then becomes whether defendant was prejudiced thereby. According to defendant, there are several
reasons why it is reasonably probable she would have achieved a better result
if she had been permitted to buttress her contention of imperfect self-defense
with the appropriate expert testimony by Dr. Markman. First, citing defense closing argument,
defendant argues that she admitted to being the shooter and presented the
defense at trial that she acted in imperfect self-defense; therefore the error
in limiting the expert testimony struck directly at the heart of her defense. Second, the prosecutor took advantage of the
error during his closing argument.
Third, the jury’s rejection of the gang allegation demonstrated that the
alleged motive for the shooting was not believed by the jury. Therefore, had the jury been presented the appropriate
psychiatric testimony in support of imperfect self-defense, it is reasonably
probable that one or more jurors would have harbored a reasonable doubt as to
that defense. Fourth, the bystander’s
comment on the 911 call, telling someone not to touch the knife, corroborated
defendant’s testimony that Nicolis and the others had knives.

We observe
initially that Dr. Markman’s proposed testimony differs significantly from the
proffered testimony in Cortes. The “core” of the report by the psychiatric expert
in Cortes was that the defendant in
all likelihood entered a dissociated state in response to the “‘extreme stress
of a perceived life-threatening danger.’”
(Cortes, supra, 192 Cal.App.4th at p. 893.)
The report went on to describe in detail the characteristics of such a
state and the defendant’s reported experience.
(Id. at pp. 893-894.) The expert concluded that the defendant’s
behavior was consistent with an act of self-defense and the mental state
described in the report. The expert’s
testimony at the Evidence Code section 402 hearing was very detailed regarding
dissociation, as well as defendant’s history and personality and how they
related to his behavior during and after the stabbing. (Cortes,
at pp. 894-898.) The trial court ruled
that the expert could not testify to anything remotely connected to the
defendant’s diagnosis or history. (>Id. at pp. 899-900.)

In the
instant case, it does not appear that Dr. Markman diagnosed defendant with any
particular psychiatric condition. Dr.
Markman’s emphasis was on defendant’s “diminished actuality” due to alcohol and
drug intake. Dr. Markman’s report of
July 18, 2011—which he confirmed as still valid in his October 13, 2011
report—stated that there was “no data to suggest diminished actuality, i.e., an
inability to premeditate, deliberate, harbor malice aforethought, and the
intent to kill as a result of an underlying mental disorder.” Voluntary manslaughter, either heat of
passion or unreasonable self-defense, were described merely as “viable
positions” based on defendant’s history of victimization. Dr. Markman apparently was only willing to
“render a general opinion” on any such positions. Therefore, it is not clear that the trial
court’s limitations on the expert testimony struck at the heart of the defense,
since Dr. Markman’s proffered testimony would not have been a strong
affirmation of that defense. The >Cortes court concluded that, in that
case, the trial court’s ruling destroyed any defense that defendant possessed
with regard to premeditated and deliberated murder by prohibiting any testimony
about the defendant’s mental condition.
(Cortes, supra, 192 Cal.App.4th at p. 912.) Thus, the jury had no basis from which to
infer that the defendant had lapsed into a dissociated state and might not have
deliberately premeditated inflicting 13 stab wounds. (Ibid.) Here, however, there
was no diagnosis of any mental illness in Dr. Markman’s report, which was the
basis of his testimony. Moreover, as
respondent points out, defendant continually told the jury that the shooting
was an accident.

It is true
that the prosecutor discussed Dr. Markman’s testimony in his closing argument
and noted the lack of specificity in the doctor’s testimony. The prosecutor stated, “What did he offer you
in this case? Nothing. He offered you—he said there’s some certain
things about posttraumatic
stress syndrome that involve combat veterans. We don’t have a combat veteran case. Certain syndromes called battered women’s
syndrome. Women who are victims of
domestic violence and the cycle of abuse.
This isn’t a domestic violence case.
He gave no opinion. He gave
general principles of, you know, people who come, have dysfunction in their
life, you know, might possibly be more likely to act unreasonably. Okay.
Well that—but he didn’t apply them to these facts. There’s no opinion. There’s no medical opinion that anyone can
give that can tell you anything other than that she acted with malice, she
acted out of anger and frustration.”

The >Cortes court noted that the prosecutor
in that case “took full advantage” of the trial court’s limitation of the
expert testimony. (192 Cal.App.4th at p.
912.) The Cortes prosecutor emphasized the number of href="http://www.sandiegohealthdirectory.com/">stab wounds as a ground for
a verdict of first degree murder, and because of the limitation of the
evidence, was able to argue that there was no explanation for the 13 stab
wounds except premeditation and deliberation. (Ibid.) The prosecutor dismissed the expert’s
testimony as “‘a lot of general information.’”
(Ibid.) Similar to the prosecutor in this case, he
pointed out that PTSD was “about warfare.”
The Cortes prosecutor
disparaged the evidence about the defendant’s upbringing as “so much whining.”
(Ibid.)

Although in Cortes the court did not state that the prosecutor took >unfair advantage of the trial court’s
ruling, it was implied, as it is by defendant in this case. Unlike Cortes,
however, there was no proffer of detailed testimony about defendant’s multiple
diagnoses recognized in the DISM (Diagnostic and Statistical Manual of Mental
Disorders). (See Cortes, supra, 192
Cal.App.4th at p. 897.) In >Cortes, these included “adjustment
disorder with emotional and conduct problems, attachment problems related to
personality development, and psychiatric problems that could be characterized
variously as PTSD, anxiety disorder or psychophysiological instability.” (192 Cal.App.4th at p. 910; see also >People v. Reyes (1997) 52 Cal.App.4th
975, 981, 984 [prejudicial error to exclude proposed expert testimony on
element of knowledge that defendant had, inter alia, “‘a schizophrenia,
paranoid, antisocial, and borderline style of personality disorder,’” and deficits in cognitive functioning].) In this case, in contrast to >Cortes, the prosecutor’s dismissal of
Dr. Markman’s testimony was not due to the exclusion of precise and detailed
psychological expert testimony regarding defendant. As we have stated previously, Dr. Markman’s
testimony was not curtailed to the extreme that the Cortes expert’s was, if at all.
Rather, it appears the doctor testified largely as he intended to
testify. After consulting with Dr.
Markman at the Evidence Code 402 hearing, defense counsel explained the
proposed testimony to the court by saying, “generally speaking, somebody that
experienced what she experienced could very well have these types of
fears.” The prosecutor’s use of that
general testimony during argument was not unduly prejudicial to defendant. It is well established that a prosecutor
enjoys wide latitude during argument to describe the deficiencies in defense
counsel’s tactics and in counsel’s version of the facts. (People
v. Bemore (2000) 22 Cal.4th 809, 846; People
v. Sassounian (1986) 182 Cal.App.3d 361, 396.) Moreover, the jury was instructed that, “[i]n
their opening statements and closing arguments, the attorneys discuss the case,
but their remarks are not evidence.”
(CALCRIM NO. 222.)

We do not
believe that the jury’s rejection of the gang allegation—an allegation that was
urged by the prosecutor as an underlying motive—necessarily indicated that one
or more jurors would have harbored a reasonable doubt as to whether defendant
acted in imperfect self-defense if the jury had heard appropriate psychiatric
testimony. In this case, the gang
evidence was relatively weak. A
reasonable juror could have determined that, at the moment defendant shot
Zaldana and attempted to shoot Nicolis, she was not acting for the benefit of
the Avalon gang with the specific intent to further their criminal
activities. She was outside of her
gang’s territory, and she did not shout out any gang name. She did not even mention her gang that
afternoon from the time the incident began until the shooting. This was not a premeditated murder exacting
punishment for disrespecting a gang, as the jury’s second degree murder verdict
indicates. A reasonable jury could have
determined that, at the moment she shot at her victims, defendant’s motives
were personal. On a related point, we
note that the defendant in Cortes was
convicted of first degree murder, and the court included in its assessment of
prejudice the fact that the evidence of premeditation and deliberation was not
overwhelming. (Cortes, supra, 192
Cal.App.4th at p. 913.) In the instant
case, there was strong evidence in support of defendant’s conviction of second
degree murder at a minimum.

The
overheard comment regarding a knife, made by an unidentified person during the
911 call that reported Zaldana’s shooting, is of little significance. Clearly the comment did not corroborate that
Nicolis and the others had knives, as defendant suggests. The defense did not show who made the comment
or what knife was being referred to. The
police found no knives on or near Zaldana.

Finally, we
note that the jury found that defendant “personally and intentionally
discharged a firearm,” causing death, within the meaning of section 12022.53,
subdivision (d) in count 1, despite defendant repeatedly saying that it was an
accident in her trial testimony. This
finding indicates that the jury did not find defendant’s version of events to
be credible. Given the vague and inconclusive
nature of Dr. Markman’s report and hearing testimony, we believe it is not
reasonably probable that, had the jury heard what little more Dr. Markman may
have had to say about defendant’s mental state (within the limits imposed by
sections 28 and 29), the verdict would have been more favorable for defendant. In other words, it is not reasonably probable
that even one juror would have held out for a verdict of voluntary manslaughter
based on unreasonable self-defense. (>Watson, supra, 46 Cal.2d at p. 836; People
v. Soojian (2010) 190 Cal.App.4th 491, 519, 521.)

II. Lack of Instruction on Lesser Included
Offenses of Voluntary Manslaughter and Attempted Voluntary Manslaughter Based
on Sudden Quarrel

A. Defendant’s Argument

Defendant
contends the trial court erroneously refused her request to instruct the jury
on voluntary manslaughter and attempted voluntary manslaughter on a sudden
quarrel theory, despite there being sufficient evidence of provocation. Defendant maintains that the error is
arguably of federal constitutional magnitude, requiring review under the
standard of Chapman v. California
(1967) 386 U.S. 18.

B. Proceedings Below

During the
conference regarding proposed jury instructions, the trial court indicated that
it would read instructions on first and second degree murder, attempted murder,
perfect self-defense, imperfect self-defense, voluntary intoxication, and
accident. Defense counsel noted for the
record that he had requested an instruction on heat of passion for voluntary
manslaughter, and the trial court had denied it. The trial court confirmed this and stated,
“this is a self-defense or nothing—or imperfect self-defense.”

>C. Relevant Authority

“The trial
court is charged with instructing upon every theory of the case supported by
substantial evidence . . . .” (>People v. Montoya (1994) 7 Cal.4th 1027,
1047.) “Substantial evidence is evidence
of reasonable, credible value.” (>People v. Crew (2003) 31 Cal.4th 822,
835; People v. Quintero (2006) 135
Cal.App.4th 1152, 1165.) The failure to
instruct on a lesser included offense is reviewed de novo. (People
v. Licas (2007) 41 Cal.4th 362, 366.)

Murder is
the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Voluntary manslaughter is the intentional but
nonmalicious killing of a human being.
(§ 192; People v. Manriquez (2005)
37 Cal.4th 547, 583.) Voluntary
manslaughter is a lesser included offense of murder. (Manriquez,
at p. 583.) A killing may be reduced
from murder to voluntary manslaughter if it occurs “upon a sudden quarrel or
heat of passion on sufficient provocation,”href="#_ftn4" name="_ftnref4" title="">^[4] or if the defendant “kills in the
unreasonable, but good faith, belief that deadly force is necessary in
self-defense.^”
(Ibid.)

“A heat of
passion theory of manslaughter has both an objective and a subjective
component. [Citations.]” (People
v. Moye (2009) 47 Cal.4th 537, 549.)
To satisfy the objective, or reasonable person, element of heat of passion voluntary manslaughter, the
defendant’s heat of passion must be attributable to sufficient
provocation. (Ibid.) “To satisfy the
subjective element of this form of voluntary manslaughter, the accused must be
shown to have killed while under ‘the actual influence of a strong passion’
induced by such provocation.
[Citation.]” (>Id. at p. 550.) “‘Heat of passion arises when “at the time of
the killing, the reason of the accused was obscured or disturbed by passion to
such an extent as would cause the ordinarily reasonable person of average
disposition to act

rashly and without deliberation and reflection, and from
such passion rather than from judgment.”
[Citations.]’ [Citation.]” (Ibid.)

A defendant
may not set up his or her own standard of conduct and justify or excuse his
acts because his passions were aroused, unless the facts and circumstances were
sufficient to arouse the passions of the ordinarily reasonable person. (People
v. Manriquez, supra, 37 Cal.4th
at p. 584; People v. Oropeza (2007)
151 Cal.App.4th 73, 82-83.) “A defendant
may not provoke a fight, become the aggressor, and, without first seeking to
withdraw from the conflict, kill an adversary and expect to reduce the crime to
manslaughter by merely asserting that it was accomplished upon a sudden quarrel
or in the heat of passion. The claim of
provocation cannot be based on events for which the defendant is culpably
responsible.” (Oropeza, at p. 83.)

Attempted
voluntary manslaughter is a lesser included offense of attempted murder.href="#_ftn5" name="_ftnref5" title="">^[5] (People
v. Gutierrez (2003) 112 Cal.App.4th 704, 708.) Attempted voluntary manslaughter, like
attempted murder, requires proof of the intent to kill. (People
v. Montes (2003) 112 Cal.App.4th 1543, 1549-1550.) “When relying on heat of passion as a partial
defense to the crime of attempted
murder, both provocation and heat of passion must be demonstrated.” (Gutierrez,
at p. 709.)

If the trial
court fails in its duty to instruct on a lesser included offense supported by
the evidence, the error is one of state law alone. (People
v. Breverman (1998) 19 Cal.4th 142, 165.)
It does not require reversal unless an examination of the entire record
establishes a reasonable probability that the error affected the outcome. (Id.
at p. 178; Watson, >supra, 46 Cal.2d at p. 836.)>

D. No Error

We believe
the trial court did not err in refusing to give an instruction on
heat-of-passion voluntary manslaughter or attempted voluntary manslaughter
. There was no substantial evidence in
this case of a sudden quarrel or heat of passion. “Adequate provocation . . . must be
affirmatively demonstrated.” (>People v. Lee (1999) 20 Cal.4th 47,
60.) No substantial evidence was
presented that any provocation by Zaldana or Nicolis was sufficient to cause an
ordinary person of average disposition to be so inflamed as to lose reason and
judgment and begin firing a gun. (>People v. Thomas (2012) 53 Cal.4th 771,
813.)

The prosecution
case showed that Nicolis was walking approximately 15 feet behind defendant
when she turned and pulled the trigger.
The gun misfired. Zaldana said,
“Run, Earley,” and defendant said “Run?”
Zaldana told defendant, “You are not going to kill my son. You got to kill me first.” Defendant “cocked” the gun, and as we saw in
the video footage, lunged toward Zaldana, shooting her in the head. Neither Nicolis nor Zaldana had touched
defendant or sought to detain her. They
were only calling the police about her gun, which she had brandished, and which
constituted wrongdoing on her part.

Because
there was no evidence of provocation in the prosecution case, it was
defendant’s burden to affirmatively demonstrate provocation and heat of passion
sufficient to enable the jury to find these elements beyond a reasonable
doubt. (People v. Dixon (1995) 32 Cal.App.4th 1547, 1552.) Defendant’s testimony failed to do so. The only encounter that may have been
characterized as a quarrel occurred at the entrance to the park where Nicolis
demanded to know why defendant had vandalized his car. Defendant did not attempt to shoot anyone at
that point. She merely brandished her
gun and then walked away. She testified
that Nicolis threatened her while he followed her, and she claimed the “gun
went off” by accident, not that she shot in anger during a quarrel. Defendant said that when Nicolis threatened
her, she turned around and pointed the gun at him to scare him. After a few moments, defendant turned around
again and the gun accidentally discharged.
In fact, rather than recalling that she shot the gun, she stated that
she merely heard it go off. Defendant did not testify that she shot at
Nicolis or Zaldana in response to any sudden quarrel. We note that defendant herself insisted she
was not angry, but only scared, before she shot Zaldana. Under defendant’s version of events, the
instructions of voluntary manslaughter based on unreasonable self-defense were
the only voluntary manslaughter instructions warranted. The requested instruction on heat of passion
would have been inappropriate and likely to confuse the jury, since defendant
did not testify that she possessed any passionate feeling at the time the shots
were fired.

We also
conclude that any error in not reading the jury the requested instructions was
harmless under any standard. (>Chapman v. California, >supra, 386 U.S. 18; Watson, supra, 46 Cal.2d
at p. 836; see People v. Breverman, >supra, 19 Cal.4th at pp. 165, 178.) The evidence was strong that defendant
committed second degree murder of Zaldana at a minimum. CALCRIM No. 520 instructed the jury that, in
order to convict defendant of murder, the People were required to prove malice
aforethought, which may be either express or implied. In addition to explaining express malice,
which occurred if defendant unlawfully intended to kill, the jury was told that
implied malice occurred when the defendant intentionally committed an act, the
natural and probable consequences of which were dangerous to human life, and
when defendant knew at the time she acted, her act was dangerous to human
life. After pulling the trigger and
having the gun misfire at Nicolis at close range, defendant cocked the gun and
pulled the trigger again, killing Zaldana.
The evidence thus established overwhelmingly that defendant committed
murder. The evidence was also strong
that defendant committed the attempted murder of Nicolis, firing at him at
close range. The jury necessarily could
not have found that defendant acted rashly after being sufficiently provoked.

DISPOSITION

The
judgment is affirmed.

NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.



BOREN,
P.J.

We concur:



ASHMANN-GERST,
J.



CHAVEZ, J.