The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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.
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 ...