(Super. Ct. No. CM023887)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 William Thomas Schmitz was sentenced to 40 years to life in state prison after he pleaded no contest to possession of methamphetamine and marijuana for sale, and a jury convicted him of second degree murder with a firearm use enhancement.
Defendant appeals contending, in addition to several instructional errors and a defective verdict form on the firearm enhancement, the trial court erred by permitting inquiry regarding compensation paid to a defense expert witness. We affirm the judgment.
In May 2005, defendant and his on-again, off-again girlfriend, Jennifer, went to a friend's birthday party. The victim, Chad Keichler, also attended the party. Keichler saw Jennifer and told her she looked good. Jennifer responded by telling Keichler that defendant was her boyfriend, to which Keichler replied, "I don't give a fuck about your boyfriend." Later during the party, Keichler made some vulgar remarks to Jennifer which upset defendant. Keichler continued to make inappropriate remarks to other partygoers, further upsetting defendant and prompting him to leave the party and wait for Jennifer in the car. Defendant later returned to the party and said something to Jennifer about wanting to stab Keichler. Because defendant was "really angry," Jennifer decided it was time to go and she and defendant left the party.
In the weeks following the party, defendant continued to talk about the incident, repeating the same story over and over again and telling Jennifer he did not like Keichler.
Sometime after the party, Keichler's friend, Joseph, crossed paths with defendant at a bar. When Joseph said he knew Keichler, defendant said, "I want to kill that motherfucker when I see him." Joseph did not take the threat seriously, but later told Keichler what defendant said.
In October 2005, Keichler and some friends, including Allen W., were sitting at the Normal Street Bar having a drink. Defendant was also sitting at the bar. At some point, Allen heard defendant say, "He's nothing but a bitch." Allen asked, "Excuse me? You talking to me?" and defendant replied, "If I was talking to you, I think you'd know it." A few minutes later, defendant walked over to Keichler, who was sitting further down the bar, and began an unfriendly "exchange of words" with him.
Defendant and Keichler eventually walked outside the bar where the verbal exchange continued. Anthony M. followed them outside, as did Allen a few minutes later. Allen heard Keichler and Anthony arguing and "talking shit back and forth." Heather F., who was standing outside the bar with defendant's roommate, noticed defendant, Keichler and Anthony in a heated conversation. Heather saw defendant say something in Keichler's ear and heard Keichler exclaim, "You're going to shoot me, mother-----?" Defendant left and Keichler, who was "extremely upset," said, "I just got my life threatened over a bunch of bullshit." Soon thereafter, a Durango pulled up to the corner and stopped. Defendant got out, moved quickly to where Keichler was standing and shot him underneath his jaw with a small revolver. Defendant then ran back to the Durango and sped away. Keichler was pronounced dead shortly after paramedics arrived.
Defendant entered a plea of no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and possession of marijuana for sale (Health & Saf. Code, § 11359). He was tried by a jury on the remaining charge of murder (Pen. Code, § 187, subd. (a)), and found guilty of the lesser included offense of second degree murder. The jury found true the special allegation that, in the commission of the murder, "defendant personally used a firearm, in violation of Penal Code sections 12022.53(b), 12022.53(c), and 12022.53(d)."
The court sentenced defendant to 15 years to life for the murder conviction, plus 25 years to life for the gun enhancement (Pen. Code, § 12022.53, subd. (d)) (hereafter § 12022.53(d)), for an aggregate term of 40 years to life in state prison.
Defendant filed a timely notice of appeal.
The defense presented at trial centered on defendant's claimed mental defect or disorder. Defense expert Dr. Joseph Chong-Sang Wu testified that defendant had a "golf ball-sized cyst or lesion," otherwise known as an arachnoid cyst, on the temporal lobe of his brain. According to Dr. Wu, the arachnoid cyst eroded bones in defendant's brain and compressed his temporal lobe, causing damage to his brain. Dr. Wu opined that the damage caused by the arachnoid cyst compromised defendant's ability to control his aggressive impulses.
The jury was instructed with the following modified versions of two pinpoint instructions requested by defendant:
Pinpoint Instruction No. 3
"You have received evidence regarding a mental defect or mental disorder of the defendant at the time of the commission of the crime charged in count one. You may consider this evidence, separately or in combination with any evidence of the defendant's intoxication, for the purpose of determining whether or not the defendant actually premeditated and deliberated and harbored malice aforethought which are elements of the crime charged in count one."
Pinpoint Instruction No. 4
"The prosecution must prove beyond a reasonable doubt that the defendant committed the charged crime with the required intent and/or mental state. If, after considering all the circumstances, including the arachnoid cyst and the resulting symptoms suffered by defendant, you have a reasonable doubt about whether the defendant formed the required intent to kill, you must find him not guilty of first or second degree murder."
Defendant contends the foregoing instructions failed to alert the jury it could consider evidence of his mental state on the issue implied malice.
The People argue defendant invited the error and is therefore prohibited from raising the issue on appeal, and in any event the jury was properly instructed and any ...