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The People v. Eric Joseph Hudson

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


February 3, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ERIC JOSEPH HUDSON, DEFENDANT AND APPELLANT.

(Super. Ct. No. 054574)

The opinion of the court was delivered by: Hull , J.

P. v. Hudson

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant was convicted by a jury of second degree murder (Pen. Code, § 187, subd. (a); further undesignated section references are to the Penal Code) and burglary (§ 459) and was found to have used a deadly weapon in connection with the murder (§ 12022, subd. (b)(1)). He was sentenced to an aggregate, unstayed term in state prison of 16 years to life.

Defendant appeals, contending the trial court erred as to each of the following: (1) forcing him to testify about his past as a condition of his expert testifying about his past as a basis for her opinions; (2) excluding expert testimony about his mental state at the time of the offenses; (3) denying his motion to suppress statements made by him during a police interrogation; (4) refusing to instruct the jury on the lesser included offense of involuntary manslaughter; (5) providing an incomplete and misleading instruction on the defense of unconsciousness; and (6) instructing the jury it could not consider the fact his wife was in custody at the time of her testimony in assessing her credibility.

We find no error and affirm.

Facts and Proceedings

On the morning of July 14, 2005, defendant killed his mother-in-law, Yvonne Powell, at her home in Woodland, California by hitting her over the head at least five times with an expandable baton. The only issue at trial was defendant's state of mind at the time of the killing.

During the two-week period leading up to the killing, defendant and his wife, Amy Hudson, had been living out of their car and stowing their clothes and other property at a nearby storage facility. After the killing, defendant drove to the storage facility, cleaned himself off and changed out of his bloody clothes. He put those clothes and the baton into several plastic bags and left them there.

Later that day, defendant picked up his wife from work and drove to the home of his stepfather, where they stayed a couple of days. Thereafter, while Amy was at work, defendant attempted to kill himself by taking some prescription pills he had stolen from his stepfather and, when that did not work, cutting his wrists. Amy took defendant to the hospital and he was admitted to the intensive care unit. While defendant was in the hospital, Amy retrieved the bloody clothes and baton from the storage unit and disposed of them in various locations.

On July 21, while defendant was still in the hospital and the victim's body had still not been discovered, defendant informed a therapist, Dr. Villamor, that he thinks he killed his mother-in-law. Dr. Villamor thereafter notified the police.

Officer Lewis LeFlore was dispatched to the victim's residence. When he arrived, he found the front door locked. He could not see inside, but could smell the odor of decaying flesh. He called Sergeant David Letamendi for assistance and called Officer Jameson Mills to make contact with defendant at the hospital. LeFlore told Mills that someone may have been injured at the victim's residence and that defendant may have been involved. Later, LeFlore and Letamendi kicked open the front door and found the victim lying on her face on the floor near the front door. There was a pool of blood under her head and blood spatter on the walls.

Officer Mills and another officer arrived at the hospital and found defendant in bed and Amy sitting beside him. The other officer took Amy out of the room and Mills spoke with defendant. Defendant told the officer he and Amy had been living out of their car after moving out of the victim's residence. Defendant then blurted out, "Is she okay?" Mills told defendant other officers were on their way to check on her.

Defendant told Mills about several recent suicide attempts because of the stress of being homeless and the incident with the victim, which "just kind of put him over the edge." Defendant explained that he had gone to the victim's home to retrieve some items belonging to him and Amy and their discussion turned into an argument. At one point, the victim yelled, "you think you can take my daughter away from me," and mentioned some places where defendant and Amy had lived during a four-year period when there had been no contact between them and the victim. Defendant concluded from this that the victim had either been following them or had had them followed.

Defendant told Mills the next thing he remembered was sitting in his car in the driveway of the victim's residence holding a baton with blood on it and seeing blood on his shorts and legs. Defendant explained that he walked up to the front door and saw the victim lying on the floor with blood under her head. He then reached in, turned the lock on the door from the inside, and closed the door. Defendant told Mills he knew he had done something bad and drove to a park to think before driving to the storage facility to change clothes. Defendant also told Mills that, on his way to and from his stepfather's house later that day, he disposed of the clothes and baton.

At that point, Officer Mills stepped out of the room and conferred with other officers. He was given a tape recorder and told to go back in and re-interview defendant on tape. Mills asked the nurses what medication defendant was on and was told a mild tranquilizer that would not affect his comprehension and ability to communicate. He was also told Dr. Villamor had placed a mental health hold on defendant prohibiting him from leaving the hospital. Mills reentered defendant's hospital room, read him his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda), and re-interviewed him on tape. During this second interview, Mills informed defendant the victim was dead.

The victim died from blunt force trauma. One blow had been to the front of her head and the others were to the back. On one section of the victim's head the skull had been fractured into many small fragments that were pushed in. Blood spatter evidence suggested most of the blows came while the victim was lying on the floor.

Gregory C. testified that he had shared a cell with defendant around July 25 or July 26 and at one point defendant broke down and was sobbing hysterically. Defendant told Gregory he was sorry for what he had done, that he had done it for his wife and that, at the time of the offense, he had gone out to his car to get something and had hit his mother-in-law over the head.

Defendant's stepfather, with whom defendant and Amy stayed the night of the murder, testified that defendant seemed normal at the time. However, defendant had called him a few days later and said he thought he killed the victim. Defendant told his stepfather he could not remember how she died and that the first thing he remembered after the murder was riding down the street with a lot of blood on him.

Defendant's father-in-law, the victim's ex-husband, testified that he had given Amy an expandable baton while she was in the military. Police eventually found a portion of the baton, as well as defendant's clothes, at the various locations where they had been discarded by Amy.

Amy testified for the defense. At the time of trial, she was serving a one-year sentence based on a no contest plea to being an accessory after the fact to defendant's crimes. Amy testified that she and defendant lived on and off with the victim, both before and after they were married, but there were conflicts with the victim. They did not see the victim between May 2000 and January 2004, part of which time Amy was serving in the military. During their marriage, defendant held various jobs and they lived in a number of places.

At the time of the murder, Amy was working at a Home Depot store and defendant was out of work. Prior to July 4, 2005, they had moved out of the victim's home and were living out of their car. During this time, defendant's mother had become paralyzed due to some medical complications. At some point during this period, Amy confided in defendant that Child Protective Services had been called out to her home on multiple occasions on allegations of sexual abuse by her mother and she wondered if there may be something there she did not remember.

On July 13, defendant and Amy received a call from the victim's real estate agent about a home the victim was trying to sell. Later that day, defendant drove to the victim's home to inform her of the call. Defendant arranged to return the next day to pick up some things they had left at the house, and Amy told him to ask the victim about Amy's baby book.

According to Amy, when defendant picked her up from work around 10:00 a.m. on July 14, he looked pale, distracted and upset. Defendant told Amy he had gone over to the victim's house and killed her. He told Amy they had gotten into an argument and he did not remember anything until he was in the car in the parking lot with blood on him. He asked her what he should do and she advised him not to turn himself in. According to Amy, defendant attempted to take his life several days later and she took him to the hospital. She then disposed of the items defendant had left in the storage unit. Amy testified she had never seen defendant be violent with anyone prior to this incident.

Defendant also testified. In addition to describing his travels with Amy and their negative experiences with the victim, defendant explained that he had been sexually molested by his grandfather when he was a child. When defendant was 11, his mother confided that she had been molested as a child. At the time she indicated the perpetrator was a stepbrother. However, she later told defendant it had been his grandfather. According to defendant, Amy also confided in him that she had been sexually touched by the victim.

Defendant testified that, on July 13, he went over to the victim's home to tell her about the telephone call from the real estate agent. At the time, he told the victim he and Amy did not want to be her message service. The victim told defendant she had some of their belongings and they arranged for defendant to return the next day to retrieve them.

The next morning, defendant returned to the victim's home. The first time he knocked, there was no answer and he left. He returned approximately 15 minutes later and again knocked. Eventually, the victim came to the door. The victim said she did not have the items ready and invited defendant inside to wait. Defendant declined and remained outside the front door. As the victim walked back into the interior of the house, defendant called in that Amy wanted her baby book as well.

The victim stopped and returned to the front door. She looked irritated and asked defendant to repeat what he had said the day before about receiving her phone calls. The victim also asked about defendant's living arrangements and defendant said they were planning to get an apartment. The victim commented that he and Amy had been living in apartments throughout their marriage and mentioned the various places they had been. She asked if that was the best defendant could do for his wife.

According to defendant, at that point he wondered how the victim could criticize him in light of the fact she had abused her own daughter. Wanting to shut her up, defendant yelled out that the victim had molested Amy. About this time, the victim reached into the house and grabbed the expandable baton. Defendant testified that he did not recall taking the baton out of the victim's hand, but did remember hitting her on the head with it at least one time. The next thing he remembered was the sound of the baton hitting the floor. He looked down and saw the victim lying there with blood around her head. At that point, defendant picked up the baton and closed and locked the front door.

Defendant claimed the next week was a blur. He talked to Amy about killing her mother and said he wanted to turn himself in but she advised against it. He tried to kill himself several times. While at the hospital, defendant asked a nurse to bring a doctor around and told the doctor he thinks he killed his mother-in-law.

Defendant denied intending to kill the victim. He asserted that at the time he hit the victim, he thought about his grandfather. Defendant acknowledged that he and Amy normally kept the baton in their car for protection, but there were times when it was moved into the house while they cleaned the car. He assumed that was why the baton was in the victim's home the day of the murder.

The last witness to testify for defendant was Dr. Linda Barnard, a marriage and family therapist who specializes in trauma survivors. Dr. Barnard opined that defendant met the criteria for post traumatic stress disorder (PTSD) both at the time she evaluated him and at the time of the offenses. Dr. Barnard explained that various traumatic events in defendant's life caused his PTSD, including his childhood sexual abuse, brutalization by defendant's brother while growing up, learning that his mother had been sexually abused by the same person who victimized him, and finding out that his wife had been molested. She explained those suffering from PTSD can have flashbacks that cause them to become violent while unconscious. Such people may go into a dissociative state whereby they become detached from reality when external trauma becomes significant. Dr. Barnard further explained that a person having a PTSD flashback may not be able to recall aspects of the incident.

Defendant was charged with first degree premeditated murder and burglary, plus personal use of a deadly weapon in connection with the murder. The jury was instructed on first degree murder plus the lesser included offenses of second degree murder and voluntary manslaughter. The jury found defendant not guilty of first degree murder but guilty of second degree murder. He was also found guilty of burglary.

Defendant was sentenced to state prison for 15 years to life for the murder, plus a one-year enhancement for the weapon use. He received a term of four years on the burglary that was stayed pursuant to section 654.

Discussion

I

Forcing Defendant to Testify

Prior to trial, the People moved in limine to exclude the testimony of defendant's mental health expert, Dr. Barnard. During an Evidence Code section 402 hearing, Dr. Barnard testified that defendant was suffering from PTSD at the time of the offenses and had a dissociative flashback. Dr. Barnard explained that defendant was not conscious of what he was doing during the attack until he heard the baton hit the floor. Dr. Barnard testified her opinion in this regard was based in part on statements made to her by defendant about being molested as a child, being abused by an older brother, and learning that both his mother and his wife had been sexually abused. Dr. Barnard further testified defendant informed her that, at the time of the offenses, he confronted the victim about having molested Amy, the victim denied it, his own molestation at the hand of his grandfather came back to him, and he saw both his grandfather's face and the victim's face in front of him.

The trial court denied the People's motion to exclude the foregoing testimony. However, the court issued a preliminary ruling that, in explaining the basis for her opinions about defendant's mental state, Dr. Barnard could not testify about hearsay statements made to her by defendant and Amy regarding defendant's past unless defendant and Amy testify.

Defendant contends the trial court violated his constitutional rights by forcing him and Amy to testify as a condition to presenting the full testimony of Dr. Barnard. He argues the court forced him to choose between his Sixth Amendment right to present a defense through the testimony of Dr. Barnard and his Fifth Amendment right not to testify.

Defendant cites as support Brooks v. Tennessee (1972) 406 U.S. 605 [32 L.Ed.2d 358] (Brooks), in which the United States Supreme Court found unconstitutional a state law requiring that if a criminal defendant desires to testify he must do so before any other defense witnesses. The court concluded the statute violates a defendant's right not to testify by requiring him to make a decision whether or not to testify before hearing all the evidence. (Id. at pp. 611-612 [32 L.Ed.2d at p. 363].) The court also found a due process violation. According to the court: "Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right. By requiring the accused and his lawyer to make the choice without an opportunity to evaluate the actual worth of their evidence, the statute restricts the defense--particularly counsel--in the planning of its case. Furthermore, the penalty for not testifying first is to keep the defendant off the stand entirely, even though as a matter of professional judgment his lawyer might want to call him later in the trial. The accused is thereby deprived of the 'guiding hand of counsel' in the timing of this critical element of his defense." (Id. at pp. 612-613 [32 L.Ed.2d at p. 364].)

The present matter is, of course, readily distinguishable from Brooks. Defendant here was not given the choice whether to testify first or not testify at all. This was not a question of timing but of admissibility of evidence. Defendant was not even required to testify as a condition to the introduction of hearsay statements he made to Dr. Barnard about his past, except insofar as defendant's testimony was the only way to get this evidence before the jury. In other words, there is no reason to believe the court would have excluded Dr. Barnard's testimony if defendant could have produced evidence about his background through other sources.

The question here, unlike that in Brooks, is whether the trial court could preclude Dr. Barnard from testifying about hearsay statements made to her by defendant as a basis for her expert opinion regarding his mental state. If so, then the court could also require the defense to present admissible evidence on defendant's past as a condition to Dr. Barnard's testimony in this regard.

An expert witness may generally base his opinion on matter "perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . ." (Evid. Code, § 801, subd. (b).) An expert witness may also state the reasons for his opinion and the matter on which it is based. (Id., § 802.)

"Since an expert's opinion '"is no better than the facts on which it is based"' [citation], experts should generally be allowed to testify to all facts upon which they base their opinions [citation]." (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1324-1325.) "An expert should be allowed to testify to all the facts upon which he bases his opinion, including relevant declarations to him. [Citation.] The statements are admissible not as proof of the facts stated but to enable the expert to explain and the jury to appraise the basis of his opinion. [Citation.]" (People v. Ainsworth (1988) 45 Cal.3d 984, 1012.)

Nevertheless, "'"[w]here expert opinion evidence is offered, much must be left to the discretion of the trial court" [citation].' [Citation.] It is well established that the court may, within its sound discretion, exclude the hearsay basis of an expert's opinion. [Citations.] [¶] '"While an expert may state on direct examination the matters on which he relied in forming his opinion, he may not testify as to the details of such matters if they are otherwise inadmissible. [Citations.] The rule rests on the rationale that while an expert may give reasons on direct examination for his opinions, including the matters he considered in forming them, he may not under the guise of reasons bring before the jury incompetent hearsay evidence. [Citation.]"' [Citation.]" (People v. Nicolaus (1991) 54 Cal.3d 551, 582-583.)

"Ordinarily, the use of a limiting instruction that matters on which an expert based his opinion are admitted only to show the basis of the opinion and not for the truth of the matter cures any hearsay problem involved, but in aggravated situations, where hearsay evidence is recited in detail, a limiting instruction may not remedy the problem." (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 789.)

The question here is whether the trial court abused its discretion in concluding Dr. Barnard could not testify about information revealed to her by defendant, not otherwise admitted into evidence, as a basis for her expert opinion. To resolve this issue, we begin with the general proposition that "any material that forms the basis of an expert's opinion testimony must be reliable." (People v. Gardeley (1996) 14 Cal.4th 605, 618.) "'[T]he law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based.'" (Ibid.)

Regarding the reliability of defendant's statements to Dr. Barnard about his past, we begin with the fact defendant obviously had an interest in painting his past in a light as difficult and traumatic as possible. Added to this is the fact that there is absolutely no corroborating evidence to support defendant's assertions about having been molested by his grandfather and abused by an older brother, or about his mother having been molested by the same grandfather. Defendant himself readily admitted he never told anyone about being molested as a child until this became relevant to his defense in this case. Thus, the trial court could readily have viewed defendant's self-serving statements with some suspicion.

In reaching her conclusion that defendant was suffering from PTSD due to significant traumatic events in his past, Dr. Barnard cited four factors: (1) defendant was molested as a child, (2) he was brutalized by an older brother, (3) his mother was molested as a child by the same person who victimized him, and (4) his wife was molested as a child. Of these, only the last is based on anything other than defendant's word.

In People v. Pollock (2004) 32 Cal.4th 1153, at page 1172, the state high court cautioned that where an expert's opinion is based largely on a defendant's hearsay statements, the trial court may prevent such "self-serving and unreliable" evidence getting before the jury without the defendant ever taking the stand and submitting to cross-examination.

Defendant nevertheless contends the trial court violated Brooks by forcing him to decide whether to testify without first being able to assess the impact of other defense evidence. That is not true. The only witness required to testify after defendant was Dr. Barnard. Defendant was free to wait until all other defense evidence was presented before deciding to testify. And as for Dr. Barnard, defendant had already heard her proposed testimony during the Evidence Code section 402 hearing.

Defendant also contends there was no reason for the trial court to depart from the general rule permitting an expert to testify about hearsay statements, since many of the foundational facts came in through Amy's testimony. However, to the extent the foundational facts came in through Amy's testimony, which occurred before defendant took the stand, defendant was not in fact required to testify. In its original ruling on the testimony of Dr. Barnard, the trial court indicated this was a preliminary ruling only. If indeed the relevant facts came out during Amy's testimony, there is no reason to believe the court would not have allowed Dr. Barnard to discuss such evidence in support of her opinions.

However, many of the foundational facts did not come in through Amy's testimony. Amy testified about having told defendant that, when she was growing up, Child Protective Services had been called to their house on several occasions on reports of sexual abuse by her mother. Amy never told defendant she had been molested, only that she "couldn't help but wonder if there's something there that [she's] not aware of that [she doesn't] remember." Amy also testified that defendant told her after he was arrested that he had been molested as a child. However, she provided no details regarding this molestation. In addition, Amy provided no testimony regarding defendant having been abused by an older brother or his mother having been molested by his grandfather.

Defendant was relying on a defense that he suffered from PTSD brought on by various traumatic events in his past. The only evidence supporting most of these facts was defendant's own self-serving statements. Defendant sought to get these events before the jury through the testimony of his expert, without subjecting himself to cross-examination. The trial court did not permit this tactic. We find no abuse of discretion in this regard.

II

Restricting Expert Witness Testimony

The trial court prohibited Dr. Barnard from testifying that defendant suffered a PTSD-induced blackout at the time of the offense. The court reasoned that such an opinion would be tantamount to saying defendant did not have the mental state required for murder at the time of the offense, in violation of section 29. Defendant contends this ruling violated his constitutional right to a fair trial by prohibiting him from putting on a defense. We disagree.

Section 28, subdivision (a), provides: "Evidence 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 is charged."

However, the foregoing is limited by section 29, which reads: "In the guilt phase of a criminal action, 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, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, 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."

Defendant argues courts interpreting the foregoing provisions "have formed one conclusion: where an essential element of the charged offense is the defendant's mental state, the defense is entitled to present 'detailed expert testimony relevant to whether a defendant harbored a required mental state or intent at the time he acted.'" However, while experts may present testimony relevant to whether the defendant harbored the requisite mental state, that does not mean they can testify as to the ultimate fact. For example, while an expert might testify that the defendant was suffering from a diminished mental state at the time of the offense, which would be relevant to whether he was able to form and did form a specific intent to commit the offense, expert would not be permitted to testify that the defendant did not have the specific intent at the time of the offense.

Defendant contends People v. Reyes (1997) 52 Cal.App.4th 975 (Reyes) is particularly instructive on the present matter. In Reyes, the defendant was prosecuted for receiving stolen property and was prohibited from presenting expert testimony on the issue of his knowledge as to whether the property was stolen. (Id. at pp. 979, 981.) During an offer of proof, the expert testified that the defendant "had a variety of mental disorders, including schizophrenia and 'a paranoid, antisocial, and borderline style of personality disorder'" and "was 'seriously disturbed emotionally in terms of his basic functioning,' 'showing deficits in his cognitive realm that might be identified as dementia or difficulty in basic cognitive functioning,'" along with "a 'serious, enduring history of polysubstance dependence.'" (Id. at p. 981.) According to the expert, "such a person 'could be functioning in a manner that was highly disorganized, distracted from reality, could be manifesting issues of delusion or hallucination, and at times severe disruption in the manner in which [he] . . . [made] decisions about how [he] did things.'" (Ibid.) The expert concluded "[i]t would be possible for such a person to lack knowledge of his acts." (Ibid.)

The Court of Appeal concluded the foregoing testimony was admissible. (Reyes, supra, 52 Cal.App.4th at p. 984.) The court indicated "the total preclusion of evidence regarding Reyes's myriad of mental disorders, and their exacerbation by drug abuse, unfairly denied him the opportunity to prove he lacked the requisite knowledge." (Id. at p. 986.)

Reyes does not assist defendant. Defendant contends that, based on Reyes, he "was entitled to rely on Dr. Barnard's opinion that he 'snapped' and was in a dissociative state at the time of the homicide and as a result might not be conscious he was having a flashback." Defendant argues such evidence was admissible to disprove both premeditation and malice. According to defendant, "[t]he jury should have been allowed to consider the effect of [his] diagnosed condition on the formation of the mental state required for the charged crime."

The jury was permitted in this instance to consider the fact that defendant was suffering from PTSD at the time of the offenses in deciding whether he harbored the necessary mental states. Defendant apparently believes the jury should also have been permitted to consider that he was in a dissociative state at the time of the murder. However, such dissociative state was a manifestation of his mental condition, not the mental condition from which he allegedly suffered. Dr. Barnard testified that one suffering from PTSD could, with the right stimuli, lapse into a dissociative state. Other evidence presented by defendant and others established the presence of the necessary stimuli at the time of the offenses. At that point, it was up to the jury, not defendant's expert, to connect the dots.

Defendant argues he never sought to have Dr. Barnard testify that he did not harbor malice at the time of the offenses. Instead, he proposed to have the doctor testify he was in a dissociative state. However, these are effectively one in the same. As explained by Dr. Barnard, one who is in a dissociative state is essentially unconscious of what he is doing. Obviously, one who is unconscious cannot harbor malice. (See People v. Babbitt (1988) 45 Cal.3d 660, 693.)

"[S]section 29 does not simply forbid the use of certain words, it prohibits an expert from offering an opinion on the ultimate question of whether the defendant had or did not have a particular mental state at the time he acted. An expert may not evade the restrictions of section 29 by couching an opinion in words which are or would be taken as synonyms for the mental states involved. Nor may an expert evade section 29 by offering the opinion that the defendant at the time he acted had a state of mind which is the opposite of, and necessarily negates, the existence of the required mental state." (People v. Nunn (1996) 50 Cal.App.4th 1357, 1364; see also People v. Czahara (1988) 203 Cal.App.3d 1468, 1477 ["[The defendant] concedes [his expert] could not state an opinion that [the defendant] did not have the mental state required for attempted murder. But taken together, the two opinions offered from [the expert]--that [the defendant] acted in the heat of passion and that his emotional reaction was objectively reasonable under the circumstances--completely negate malice aforethought"].)

Defendant argues he was denied due process in this instance because the prosecution was permitted to introduce evidence "to support its theory that [defendant] harbored malice at the time of the crime," but he was denied the opportunity to present contrary evidence. However, in support of this argument, defendant cites 166 pages of trial transcript encompassing nearly the entire direct examination of Officer Mills regarding his interview of defendant at the hospital and large portions of defendant's own testimony. None of this evidence amounts to a statement, expert or otherwise, that defendant harbored malice at the time of the offenses. Rather, it was no more than circumstantial evidence that defendant acted deliberately and knew what he was doing. There is nothing inappropriate in this. Defendant was not precluded from presenting contrary evidence that he blacked out and did not recall the assault.

A trial court's determination under section 29 is reviewed for abuse of discretion. (People v. San Nicolas (2004) 34 Cal.4th 614, 663; People v. Bordelon, supra, 162 Cal.App.4th at p. 1327.) Under the circumstances of this case, we find no such abuse.

III

Motion to Suppress

Prior to trial, defendant moved in limine to exclude his statements to Officer Mills during the hospital interviews. Defendant argued the first part of the interview, conducted without a tape recorder, was not preceded by Miranda warnings, and his waiver of Miranda rights prior to the subsequent taped interview was not voluntary. The trial court denied the motion, concluding defendant was not in police custody during the initial interview and defendant's later waiver of his Miranda rights was voluntary.

Defendant contends the court erred in both conclusions. First, defendant argues he was in custody by virtue of a Welfare and Institutions Code section 5150 hold placed on him by medical staff at the hospital. That section reads in relevant part: "When any person, as a result of mental disorder, is a danger to others, or to himself or herself, . . . a . . . member of the attending staff, as defined by regulation, of an evaluation facility designated by the county . . . may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation." Defendant further argues that because he was not read his Miranda rights until after being interviewed for 40 minutes and confessing to the murder, his subsequent waiver was not voluntary.

The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." This privilege protects an accused from being compelled to testify against himself or to provide evidence of a testimonial or communicative nature. (Schmerber v. California (1966) 384 U.S. 757, 761 [16 L.Ed.2d 908, 914].) In recognition of this Fifth Amendment protection, Miranda prohibits custodial interrogation unless the suspect "knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to an appointed counsel in the event the suspect is indigent." (People v. Sims (1993) 5 Cal.4th 405, 440.)

Where a defendant challenges his statements as coerced, we view the totality of the circumstances surrounding the statements to determine independently whether the prosecution has met its burden of proving that the statements were voluntary. (Arizona v. Fulminante (1991) 499 U.S. 279, 285-286 [113 L.Ed.2d 302, 315]; People v. Thompson (1990) 50 Cal.3d 134, 166, disapproved on other grounds as recognized in Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 829.) "Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citations.] Although no one factor is controlling, the following circumstances should be considered: '(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.' [Citation.] Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect's freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were 'aggressive, confrontational, and/or accusatory,' whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]" (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404, fn. omitted.)

"Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court's determination that a defendant did not undergo custodial interrogation, an appellate court must 'apply a deferential substantial evidence standard' [citation] to the trial court's factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, 'a reasonable person in [the] defendant's position would have felt free to end the questioning and leave.'" (People v. Leonard (2007) 40 Cal.4th 1370, 1400.)

Defendant argues: "Where a defendant is being placed on an involuntary psychiatric commitment under Welfare and Institutions Code section 5150, and a uniformed officer interrogates him about a possible crime, the defendant is in custody and Miranda warnings are required." Defendant cites as support People v. Layton (1972) 29 Cal.App.3d 349 (Layton).

In Layton, a police officer was summoned to a local hospital to speak with the defendant, who had been admitted following a drug overdose. The officer spoke with the defendant and learned that he had taken LSD. The officer and a nurse discussed that the defendant had no funds or insurance and they decided he would be transferred to the county hospital for treatment. The officer then gave the defendant a pat-down search, placed him in the locked portion of his patrol car and transported him to the county hospital. At the county hospital, the officer engaged the defendant in conversation for about 15 minutes and then asked, "Are you holding anything?" The defendant replied "No," but a few seconds later took a packet of tinfoil out of his pocket and gave it to the officer. The packet contained a tablet of LSD. The officer then read the defendant his Miranda rights. (Layton, supra, 29 Cal.App.3d at pp. 351-352.)

The trial court denied the defendant's motion to suppress the LSD, but this court reversed. We indicated the key question is whether the defendant was in custody at the time of the interrogation and "a person is in custody for purposes of the Miranda warning when he is deprived of his freedom in 'any significant way.'" (Layton, supra, 29 Cal.App.3d at p. 354.) We explained the officer "had reasonable cause to believe that the defendant was in violation of . . . section 647, subdivision (f), and he had probable cause to make a formal arrest had he chosen to do so. Under the undisputed facts of the case, it cannot reasonably be argued that the defendant was ever free to leave at any time after the arrival of [the officer]." (Ibid.)

Defendant argues the circumstances presented here demonstrate he was in custody at the time of the interview by Officer Mills by virtue of the hold placed on him by medical staff. However, all custodies are not created equal. In Layton, the officer took control of the defendant at a private hospital, transported him to a county hospital in the locked portion of his patrol car, and questioned him at the county hospital. At the time, the officer had probable cause to believe the defendant had committed a crime and clearly would not have allowed the defendant to leave his custody.

In the present matter, at the commencement of the initial interview, Officer Mills was aware only that something may have happened to the victim and defendant may have been involved somehow. However, even if we assume Mills had probable cause to believe defendant had committed a crime, he did not arrest or otherwise take control of defendant. Defendant was on a hospital hold imposed by his doctor. And while defendant was no more free to leave than the defendant in Layton, it is the fact that restraints were imposed by the doctor rather than the officer, as in Layton, that makes all the difference.

"The bare fact of custody may not in every instance require a warning even when the suspect is aware that he is speaking to an official . . . ." (Illinois v. Perkins (1990) 496 U.S. 292, 299 [110 L.Ed.2d 243, 252].) Miranda is not concerned simply with the fact that questioning occurs while a suspect is in custody. "Miranda's definition of custody reflects a concern more with the coercive forces that may affect interactions between a suspect and an interrogating official, and less with the fact that a person's ability to select his activities and routine is greatly limited . . . ." (People v. Macklem (2007) 149 Cal.App.4th 674, 691 (Macklem).) Absent a formal arrest, the issue of custody for purposes of Miranda turns on "how a reasonable person in the suspect's position would perceive his circumstances." (Yarborough v. Alvarado (2004) 541 U.S. 652, 662 [158 L.Ed.2d 938, 950].)

In Macklem, the defendant was incarcerated in prison and a police detective asked to speak with him. A housing deputy asked the defendant if he was willing to speak with the detective and the defendant was brought to the detective in an interview room. The detective told the defendant she wanted to talk to him about a matter other than that for which he was in custody and told him he was not required to speak with her and could return to his cell at any time. The detective did not read the defendant Miranda warnings. The defendant agreed to speak to the detective and made various incriminating statements. (Macklem, supra, 149 Cal.App.4th at p. 688.)

The Court of Appeal found no Miranda violation under these circumstances, explaining: "Since Macklem was not free to leave the detention facility entirely, we analyze the facts to determine whether some additional degree of restraint was imposed upon him that forced him to participate in this interview . . . . First, with respect to the language used to summon him for questioning, Detective Birmingham requested that the housing deputy contact Macklem at his cell and ask him if he was willing to come out and talk, but she communicated both to the deputy and to Macklem that he was not required to do so. . . . [¶] Since Macklem arrived at the interview room in handcuffs and was uncuffed and left there with the door ajar, with Birmingham, these facts as a whole support a reasonable inference that he showed willingness to participate in her interview. Those physical surroundings of the interrogation weigh against any finding of coerciveness, since he was left there and told he would be taken back at his request, and asked if he wanted to answer questions there. Moreover, an interview room where attorneys and doctors visit to consult inmates is as close to neutral territory as is available in the detention facility. [¶] . . . [T]here is no clear indication that Macklem was confronted with evidence of his guilt, since Detective Birmingham conducted the interview by asking him what he knew about the Doane incident. . . . [¶] Finally, these circumstances do not disclose that any additional pressure was exerted to detain him in a coercive manner. . . ." (Macklem, supra, 149 Cal.App.4th at pp. 695-696.)

A number of cases have considered police questioning of suspects while under the treatment of medical personnel. In United States v. Martin (9th Cir. 1986) 781 F.2d 671, the police received a report that the defendant had been injured in an explosion at his apartment and was in the hospital receiving treatment. They next day, they interviewed the defendant at the hospital without reading him Miranda warnings, and the defendant admitted he had been making bombs in his apartment. The Circuit Court of Appeals ruled the interview did not occur in a custodial setting within the meaning of Miranda. (Id. at p. 673.)

In United States v. New (8th Cir. 2007) 491 F.3d 369 (New), the defendant was involved in a fatal car accident in which he was the only survivor and his blood alcohol level at the time was well above the legal limit. The defendant claimed at the time that he was not the driver. An FBI agent visited the defendant in the hospital and informed him he did not have to speak with the agent, was not being arrested, could stop the interview at any time, and could ask the agent to leave. The defendant thereafter admitted he had been the driver. (Id. at p. 372.) The Circuit Court of Appeals concluded the defendant was not in custody at the time of the interview. (Id. at p. 374.)

Of course, the present matter involves more than just a police contact with defendant at a hospital. At the time of the visit, defendant was subject to a Welfare and Institutions Code section 5150 hold and, therefore, was not free to leave.

In denying defendant's suppression motion, the trial court cited People v. Mosley (1999) 73 Cal.App.4th 1081. In Mosley, one individual was killed and others injured in a gang shootout and officers arriving on the scene learned that the defendant had been injured and was receiving treatment in an ambulance nearby. An officer entered the ambulance and questioned the defendant without reading him Miranda warnings and the defendant made incriminating statements. (Id. at pp. 1085-1086.)

The Court of Appeal concluded the defendant was not in custody under the circumstances, explaining: "Any restraint of defendant's freedom of action was caused by the need to treat his gunshot wound, which was still bleeding and was actively being treated during the interview. He had not been placed under arrest because the police did not know what had happened that caused him to be shot. If he was a victim of a shooting they needed information to put out a broadcast on his assailants. They knew that two shootings had occurred, but they did not know at the time of the interview what started the shooting, who was involved, or even if the two shootings were related to each other. Additionally, we note that the interview was in view of and in the presence of medical personnel who continued to treat defendant during the brief interview. We also note that the questioning was not accusatory or threatening, that defendant was not handcuffed, that no guns were drawn, and that defendant was about to be transported to a hospital and not to a police station or jail. Based on all of the circumstances present, we find a reasonable person in defendant's position would not have believed he was in police custody and that no Miranda rights were required prior to questioning." (People v. Mosley, supra, 73 Cal.App.4th at p. 1091.)

The question here is not simply whether defendant's freedom of movement was curtailed at the time of the interview by virtue of the medical hold imposed by his doctor. Defendant was no more in custody under such circumstances than the inmate in Macklem. As noted above, the question is whether a reasonable person would interpret the restraints used by the police as tantamount to a formal arrest. (People v. Pilster, supra, 138 Cal.App.4th at p. 1403.) As the court explained in New, the custody inquiry "turns on whether, given the totality of the circumstances, a reasonable person would have felt at liberty to terminate the interrogation and leave [citation], or in this case, to terminate the interrogation and cause the [officer] to leave." (New, supra, 491 F.3d at p. 373.)

The question of whether additional coercive pressure was brought to bear on defendant by the presence of Officer Mills in his hospital room depends to some extent on how defendant perceived the situation. Since it was defendant himself who got the ball rolling by voluntarily notifying his doctor of the crime, defendant could not have been surprised by the arrival of Officer Mills. And, at that point, defendant did not know what Officer Mills knew about the situation. When defendant asked about the victim, Mills indicated he did not know and that other officers were on the way to investigate. Hence, even if Mills suspected defendant may have committed a crime, there is nothing to suggest defendant knew it. Mills did not accuse defendant of anything and did not engage in any aggressive questioning. The hospital room was open to medical personnel during the interview and the interview was one on one. Under these circumstances, we cannot say the trial court erred in concluding defendant was not in police custody at the time of the initial interview. Hence, no Miranda warnings were required.

Having concluded the initial interview did not violate Miranda, this resolves defendant's challenge to the subsequent, taped interview as well. The trial court found defendant's statements during that interview were voluntary, and defendant does not challenge that ruling except insofar as the second interview was tainted by the first. There being no such taint, defendant's challenge to the taped interview fails.

IV

Involuntary Manslaughter Instructions

The jury was instructed on first and second degree murder and voluntary manslaughter. Defendant requested instructions on involuntary manslaughter as well. In particular, he proposed CALCRIM No. 580 and a special instruction. CALCRIM No. 580 reads in part:

"When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.

"The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter. . . ."

Defendant's special instruction No. 2 read: "When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter."

The trial court refused both instructions.

Defendant contends he was entitled to an instruction on involuntary manslaughter, because the evidence supported a conviction for such offense and this was his "'strongest' theory of defense." According to defendant, "[b]ecause the factual question presented by the involuntary manslaughter instructions was whether [he] committed an unlawful killing without malice, there was no other instruction that allowed the jury to reconcile the evidence."

In any criminal matter, the jury must be instructed on all crimes necessarily included within the offense charged if there is substantial evidence from which a reasonable jury could conclude the defendant is guilty only of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 118.) "Where the evidence warrants, the rule ensures that the jury will be exposed to the full range of verdict options which, by operation of law and with full notice to both parties, are presented in the accusatory pleading itself and are thus closely and openly connected to the case. In this context, the rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other." (Id. at p. 119.)

Murder is the unlawful killing of a human being or fetus "with malice aforethought." (§ 187, subd. (a); People v. Knoller (2007) 41 Cal.4th 139, 151.) Malice may be either express or implied. Malice is express "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188.) Implied malice involves "'"an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life."'" (Knoller, supra, 41 Cal.4th at p. 143.)

Manslaughter is the "unlawful killing of a human being without malice." (§ 192.) Manslaughter may be either voluntary or involuntary. An intentional and unlawful killing without malice is voluntary manslaughter. It may involve an intentional killing under circumstances whereby the defendant had an unreasonable belief in the need for self defense or where the killing occurred in a sudden quarrel or heat of passion. (People v. Garcia (2008) 162 Cal.App.4th 18, 27 (Garcia).) In other words, voluntary manslaughter involves an intentional killing that would otherwise be murder but for the presence of some provocation that negates malice.

Involuntary manslaughter is the unlawful killing of a human being without malice and without intent to kill "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).) Involuntary manslaughter of the unlawful act variety requires a killing during "'an unlawful act, not amounting to felony,'" i.e., a misdemeanor, that is dangerous to human life under the circumstances of its commission. (People v. Cox (2000) 23 Cal.4th 665, 667; see id. at pp. 675-676.) "Involuntary manslaughter based on the commission of a lawful act that might produce death 'without due caution and circumspection' requires proof of criminal negligence--that is, 'aggravated, culpable, gross, or reckless' conduct that creates a high risk of death or great bodily injury and that evidences a disregard for human life or indifference to the consequences of the conduct." (Garcia, supra, 162 Cal.App.4th at p. 27.)

There are certain types of unlawful killings that do not fit neatly within any of the foregoing statutory definitions. An unlawful killing without malice and without intent to kill during the commission of a misdemeanor that is dangerous to human life is involuntary manslaughter. However, an unlawful killing without malice and without intent to kill during the commission of a felony does not fall within the statutory definition of either voluntary or involuntary manslaughter. Where the felony is one enumerated in section 189, the crime is first degree felony murder. Where the felony is not listed in section 189, but is one inherently dangerous to human life, the crime is either second degree felony murder or voluntary manslaughter.

The crime is second degree felony murder if the underlying felony is not an assaultive offense that led to the killing. "The merger doctrine developed due to the understanding that the underlying felony must be an independent crime and not merely the killing itself. Thus, certain underlying felonies 'merge' with the homicide and cannot be used for purposes of felony murder." (People v. Chun (2009) 45 Cal.4th 1172, 1189.) Merger applies whenever the underlying felony is assaultive in nature. "An 'assaultive' felony is one that involves a threat of immediate violent injury." (Id. at p. 1200.) Where the merger doctrine applies, an unlawful killing without malice and without intent to kill during the commission of an inherently dangerous felony is voluntary manslaughter. (Garcia, supra, 162 Cal.App.4th at p. 31.)

An unlawful killing without malice and without intent to kill during the commission of a felony that is not inherently dangerous is involuntary manslaughter if that crime is committed without due caution and circumspection. (People v. Butler (2010) 187 Cal.App.4th 998, 1007.)

Defendant contends an instruction on involuntary manslaughter is appropriate any time there is substantial evidence the defendant did not intend to kill the victim. He further argues such evidence exists here. Defendant testified he did not intend to kill the victim. He also asserts his expert, Dr. Barnard, "testified when [defendant] grabbed the [baton] to strike Ms. Powell it was not 'really [a] choice' since in this situation, people do not 'make a conscious choice before they do every single thing that they do.'"

Defendant misstates Dr. Barnard's testimony. Defendant cites the following colloquy during Dr. Barnard's testimony:

"Q. Okay. You indicated when asked the question whether he chose to grab the weapon and you said no; is that your testimony?

"A. I said 'choose' was the wrong word. He grabbed it, but I don't know that he made it--whether it was instinct or really choice.

"Q. Why --

"Is that based on your opinion?

"A. Well, it's a [sic] based on my opinion and also my experience with these kinds of situations that are escalating that people don't necessarily stop and make a conscious choice before they do every single thing that they do. A lot of it is just action, reaction." (Italics added.)

In the foregoing testimony, Dr. Barnard was talking about a hypothetical individual in similar circumstances. Defense counsel asked if it was Dr. Barnard's testimony that defendant chose to grab the baton, and Dr. Barnard indicated she did not know if defendant made a conscious choice to do so. She then testified that in her experience people in this kind of situation do not necessarily stop and think before they act. Immediately after the foregoing testimony, defense counsel asked: "Is that your belief or opinion in this situation?" However, the prosecutor objected to this question and the court sustained the objection. Thus, Dr. Barnard never testified that, in this instance, defendant acted without making a conscious choice.

At any rate, defendant is incorrect that an involuntary manslaughter instruction is required whenever there is evidence that an unlawful killing occurred without malice and without intent to kill. As described above, "there are three types of acts that can underlie commission of involuntary manslaughter: a misdemeanor, a lawful act, or a noninherently dangerous felony." (People v. Butler, supra, 187 Cal.App.4th at p. 1006.) In order to give rise to involuntary manslaughter, an underlying misdemeanor must be dangerous to human life under the circumstances of its commission, while a lawful act must be committed with criminal negligence. Likewise, in order to support a charge of involuntary manslaughter, a noninherently dangerous felony must be committed with criminal negligence. (Id. at p. 1007.)

The People contend the killing here was murder, because it involved either express or implied malice. According to the People, "there can be no real dispute that the killing resulted from an intentional act, the natural consequences of which were dangerous to human life." The People argue that, while defendant testified he did not intend to kill the victim, the evidence shows he at least intended to assault her with a deadly weapon. Thus, even if the jury believed defendant's testimony that he did not intend to kill the victim and lost consciousness after the first blow, the remaining evidence established that defendant assaulted the victim with a deadly weapon, which is an intentional act the natural consequence of which is dangerous to human life.

We agree the evidence here did not support an instruction on involuntary manslaughter. Defendant never denied he intentionally hit the victim, only that he did not intend to kill her and did not remember all the blows. There is also no dispute the baton defendant used was a deadly or dangerous weapon. Defendant himself admitted that he and his wife kept the baton for protection while living out of their car.

The elements of an assault with a deadly weapon are as follows: (1) the defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; (2) the defendant did the act willfully; (3) when he did so, the defendant was aware of facts that would lead a reasonable person to realize his act would result in the application of force to someone; and (4) the defendant had the present ability to apply force with the deadly weapon. (§§ 240, 245, subd. (a)(1); People v. Golde (2008) 163 Cal.App.4th 101, 120-123; CALCRIM No. 875.) Assault with a deadly weapon is a felony inherently dangerous to human life. (Garcia, supra, 162 Cal.App.4th at p. 28, fn. 4.)

In the present matter, if the jury rejected defendant's claim that he committed the crimes while in a dissociative state, which would have exonerated him altogether, the only issue was whether defendant committed murder, either first or second degree, or voluntary manslaughter. If the jury concluded defendant acted with sufficient provocation, the crime would be voluntary manslaughter. If the jury concluded defendant did not act upon sufficient provocation, the evidence is undisputed that he intentionally assaulted the victim with a deadly weapon. The jury would then be required to determine whether defendant intentionally killed the victim with express or implied malice, in which case the crime was murder, or the killing was unintentional, in which case, under the merger rule, the killing would be voluntary manslaughter. There is no room in this scenario for a conviction for involuntary manslaughter. Thus, the trial court did not err in rejecting defendant's proposed involuntary manslaughter instructions.

V

Unconsciousness Instruction

The trial court instructed the jury on unconsciousness in accordance with CALCRIM No. 3425 as follows:

"The defendant is not guilty of First Degree Murder, Second Degree Murder, Voluntary Manslaughter, or Burglary if he acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions.

"Unconsciousness might be caused by a blackout or a disassociative [sic] state.

"The People must prove beyond a reasonable doubt that the defendant was conscious when he acted. If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was conscious. If, however, based on all the evidence, you have a reasonable doubt that he was conscious, you must find him not guilty."

Defendant contends the foregoing instruction suffered from two defects. First, it directed the jury to presume defendant was conscious "[i]f there is proof beyond a reasonable doubt that [he] acted as if he were conscious." In addition, the instruction left out a portion of CALCRIM No. 3425 that reads: "Someone may be unconscious even though able to move." (CALCRIM No. 3425.)

Regarding the first alleged defect, defendant argues the People must prove beyond a reasonable doubt all elements of the offense and, because a person is not legally liable if not conscious when the offense was committed, consciousness is effectively an element of the offense. Defendant recognizes that in Babbitt the California Supreme Court upheld CALJIC No. 4.31, the predecessor of CALCRIM No. 3425, which contained the same presumption language. (See Babbitt, supra, 45 Cal.3d at p. 690, fn. 9.) In Babbitt, the court explained the elements of murder are death, causation and malice, whereas unconsciousness is a defense. "Although the state, once the defendant raises the issue, has assumed the burden of disproving unconsciousness, this fact of itself does not transform absence of the defense--consciousness--into an element of murder . . . . This is true even though unconsciousness negates the elements of voluntariness and intent, and when not voluntarily induced is a complete defense to a criminal charge [citations]." (Id. at p. 693.) And because consciousness is not an element of the offense, an instruction that the defendant is presumed conscious if it is proven beyond a reasonable doubt he acted as if he were conscious does not shift the burden to the defendant to disprove an element or impermissibly lighten the prosecution's burden. (Id. at pp. 693-694.)

Defendant contends Babbitt is no longer good law in light of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), which held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490 [147 L.Ed.2d at p. 455].) Defendant argues Apprendi adopted a functional test to determining whether a specific factor is an element of the charged offense. Defendant further argues that while consciousness is not formally labeled an element of murder, "[t]he question is not how the [L]egislature has labeled 'consciousness,' but whether a finding of consciousness exposed [defendant] to punishment not available in the absence of such a finding." According to defendant, "[t]here is little dispute as to this point" and, under California law, "an unconscious person is not capable of committing a crime, if unconsciousness is not voluntarily induced."

Defendant's argument proves too much. Apprendi dealt with sentencing factors, i.e., additional facts that raise a particular offense to a higher level warranting greater punishment. This can be a matter of line drawing. Is a killing committed by use of a firearm an offense called murder or is it an offense called assault with a deadly weapon with a special sentencing factor of death of the victim? (See, e.g., Blakely v. Washington (2004) 542 U.S. 296, 306-307 [159 L.Ed.2d 403, 415-416].)

The present matter does not involve a sentencing factor or anything else that might expose defendant to greater punishment. The factor at issue, unconsciousness, serves to negate an element already recognized to exist in the offense of murder--malice. The People are required to prove malice beyond a reasonable doubt. To the extent defendant was not conscious at the time of the offense, he could not have harbored malice. Hence, proof of unconsciousness negates an element of the offense and is a defense.

"[W]hen there is placed upon an accused the burden of interjecting a factual contention which, if established would tend to overcome or negate proof of any element of the crime charged as otherwise established by the People, the accused need only raise a reasonable doubt as to the existence or nonexistence of the fact at issue." (People v. Tewksbury (1976) 15 Cal.3d 953, 963.) Under the trial court's instruction, the jury was told the People must prove he was conscious at the time of the offense but should conclude he was conscious if the People prove beyond a reasonable doubt he so acted. Such a presumption has been recognized as proper. (See People v. Hardy (1948) 33 Cal.2d 52, 63-64.) Under this instruction, even if the People prove beyond a reasonable doubt that defendant acted as if he was conscious, he need only raise a reasonable doubt as to whether he was in fact conscious at the time. This instruction adequately protected defendant's due process rights.

As for the absence of language regarding someone being conscious even though able to move, the People contend defendant failed to object to the instruction on this ground and, hence, the issue is forfeited. We agree. Where a party claims on appeal that a legally correct instruction was too general or incomplete, and in need of clarification, the party must show that he requested modification, clarification or amplification in the trial court; otherwise

the contention is forfeited. (People v. Valdez (2004) 32 Cal.4th 73, 113.)

The instruction as given informed the jury defendant is not guilty of murder if he acted while unconscious and was unconscious if not conscious of his actions. In this portion of the instruction, it is inferred that defendant "acted" or took some "actions." The missing portion of the instruction was merely clarification and amplification that a person may be unconscious while acting or taking actions. Because defendant did not request the additional language, his contention is forfeited.

VI

Instruction on Custody Status

At the time of her testimony in this matter, Amy was in custody on a plea of no contest to being an accessory after the fact to defendant's crimes. The trial court instructed the jury pursuant to CALCRIM No. 337 as follows: "When Amy Hudson testified, she was in custody. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness's testimony according to the instructions I have given you."

Defendant contends this instruction should not have been given, as it "undercut the defense and invaded the province of the jury." According to defendant, the fact Amy was in custody at the time of her testimony was relevant to her credibility because, "despite having an incentive to support the state's theory of the case, she testified for the defense."

Defendant fails to explain how the fact Amy was in custody had any bearing on her credibility in this matter. He cites cases in which the court determined it was error to instruct the jury not to consider the fact a witness who may have been involved in the crime is not being prosecuted along with the defendant. (See People v. Williams (1997) 16 Cal.4th 153, 225, fn. 5, 226-227; People v. Hardy (1992) 2 Cal.4th 86, 189-190.) However, it can readily be seen how a person allegedly involved in the crime who has not been prosecuted would have an incentive to support the prosecution. It is not so clear how an accomplice who has already been prosecuted and sentenced would have such an incentive. On the contrary, without some type of contingency arrangement, it can be seen that such a witness would be biased against the prosecution.

Defendant argues the fact Amy was in custody "and had made a deal with the state for minimal jail time" would normally suggest a strong motive to support the prosecution's case. He further argues that, because Amy instead testified for the defense and corroborated much of defendant's testimony, her credibility is enhanced.

There is no evidence in this record that Amy made a deal with the prosecution for minimal jail time. But even if there were, there is nothing in the record to suggest such deal was contingent on her testifying favorably to the prosecution or that there was any reason for her to believe her overall punishment would be impacted by her testimony. In other words, there was no reason for the jury to consider her custody status in assessing her credibility.

CALCRIM No. 337 is obviously designed to protect the credibility of a witness who is in custody at the time of his or her testimony. Thus, the instruction served to benefit defendant. His assertions to the contrary are based on speculation.

Disposition

The judgment is affirmed.

We concur: BLEASE , Acting P. J. ROBIE , J.

20120203

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