APPEAL from a judgment of the Superior Court of San Diego County, Aaron H. Katz, Judge. (Super. Ct. No. SCN260167)
The opinion of the court was delivered by: Haller, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Eric Russell Andreasen appeals from a judgment convicting him of first degree murder, with a special circumstance finding of murder during the commission of attempted robbery. At trial, defendant disputed that he was engaged in a robbery at the time of the killing, and also raised a plea of not guilty by reason of insanity.
On appeal, defendant argues the guilt phase judgment must be reversed because (1) the trial court abused its discretion in admitting prior misconduct evidence, (2) there was insufficient evidence of attempted robbery to support the special circumstance finding of murder during an attempted robbery, and (3) the felony-murder special circumstance enhancement, which imposes a sentence of life without the possibility of parole, is unconstitutionally vague. Defendant also argues the sanity phase judgment must be reversed because the trial court erred by (1) instructing the jury that he refused to be examined by the prosecution's retained mental health expert and (2) admitting into evidence statements he made to the police after he asserted his Miranda*fn2 rights. As to sentencing, defendant asserts the court erred in imposing a parole revocation restitution fine.
In the published portion of this opinion, we reject defendant's vagueness challenge to the felony-murder special circumstance enhancement, and his claim of a Miranda violation. In the unpublished portion of this opinion, we find no error concerning the admission of the prior misconduct evidence, the sufficiency of the evidence of attempted robbery, and the instruction concerning refusal to submit to an examination. We agree the parole revocation restitution fine must be stricken, and modify the judgment accordingly. As so modified, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 3, 2009, defendant approached victim Katherine Parker in a shopping center parking lot, engaged in an altercation with her, and fatally stabbed her. Several witnesses testified at trial about their observations.
Christine Moring testified that about 4:00 p.m. on April 3, 2009, she saw defendant in the parking lot approaching a man and talking to him. She had an uncomfortable feeling about the defendant's interaction with the man. While she was putting her shopping cart in the cart rack, Moring saw defendant pacing near her car and look inside her car. Moring had left her purse inside her car and the driver's door open, so she ran to her car and slammed the door shut. Defendant looked at her and said in an angry voice, " 'All I wanted was some change,' " and he then "stormed off."
After leaving Moring, defendant assaulted victim Parker in a nearby area of the parking lot. Moring, who observed the incident, testified that as she was preparing to drive out of her parking space, she saw defendant "jump" onto Parker and his hand "going up and down . . . ." As she drove closer, she saw defendant wrestling with Parker, "moving her around a little bit." She then saw him holding her up from around her waist with one of his hands, and she saw his other hand moving repeatedly in an up-and-down motion.
The assault was also witnessed by Kerry and Julie Kusiak. Mr. Kusiak testified that while he was driving in the parking lot, he saw defendant and Parker pushing and yelling at each other. They were facing each other and "kind of struggling with their arms." It appeared as if they were "struggl[ing] over something" and as if Parker was trying to pull away from defendant. Parker was pushed sideways, and then defendant came around from behind her and started stabbing her.
Mrs. Kusiak testified she first heard "[l]oud, out of control, scared, female" screaming. When they drove closer, she saw Parker slightly bent over, struggling with defendant, and clutching her purse in front of her. Defendant's arms were around Parker; he appeared to be punching her and making reaching motions towards where she was holding her purse.*fn3 When defendant initially struck Parker in the abdomen, Parker remained standing, "kind of hunched over" and still holding her purse in front of her.
As the attack was occurring, Moring and Mr. Kusiak started honking their horns, and people began coming out of the stores. Witnesses saw Parker slump over and drop to the ground. Defendant then stepped back, threw the knife across the parking lot, dropped to the ground, and stayed there until the police came and arrested him.*fn4
Other witnesses arrived at the scene after Parker was lying on the ground. Parker was in extreme pain, but was initially conscious. Marisa Diaz-Waian sat down next to Parker and put Parker's head in Diaz-Waian's lap. Parker was clutching her purse with one of her hands, and Diaz-Waian had to take Parker's hand off of the purse to try to hold her hand. Brenda Moser (a nurse) testified that Parker was tightly clutching her purse; Parker would not let go of it when Moser tried to take it from her; and Moser had to ask Parker a couple of times if she would release the purse so Moser could get her identification. In addition to seeing severe wounds on her face and abdomen, Moser noticed that Parker had several slash wounds to her hands.
When the paramedics arrived, Parker was in critical condition and bleeding heavily. She lost consciousness and died before she could be transported to the hospital. She suffered cuts on her face, neck, chest, abdomen, and hands, and as a result of her wounds bled to death. Her injuries included a deep cut from her mouth to her cheek area; a deep cut across her neck that severed her jugular vein; stab wounds to her abdomen that caused her intestines to protrude; and cuts on her fingers, palm, and side of her hands.
Uncharged Misconduct Evidence
To support that defendant killed Parker while he was attempting to commit a robbery, the prosecution presented evidence of an offense he committed in 2004 which involved panhandling and assault, and several incidents when he engaged in aggressive panhandling shortly before the April 2009 stabbing.
Ricardo Hernandez described the 2004 offense when defendant and another man demanded money from him and then assaulted him. Hernandez testified defendant "asked for some change." When Hernandez said he did not have any, defendant argued with him in an angry, loud voice, saying that Hernandez was lying and he did have money. As Hernandez started walking away, defendant kept arguing with him. Defendant's companion then ran up and "took a swing" at Hernandez. Hernandez and the companion fell to the ground, and defendant jumped on top of Hernandez and started hitting him. Hernandez was trying to "duck and cover" himself as the men were hitting him. The men eventually stopped and left Hernandez on the ground without taking any property from him.
The aggressive panhandling incidents included an altercation about nine days before the stabbing near defendant's home; two altercations at the same shopping center as the stabbing (the first incident occurring four days before the stabbing, and the second one occurring the day before the stabbing); and an altercation on the morning of the stabbing at a shop across the street from the shopping center.
Christine Carlino, who lived next door to defendant, testified that in January 2009 she and her husband encountered defendant at around 9:00 p.m. while they were walking their dog. Defendant was rambling "on and on" about how he needed money, and Carlino's husband told defendant he should go home. A few months later, on about March 24 or 25, defendant came up to Carlino at about 6:00 a.m. when she was getting her newspaper from the driveway. Defendant demanded money from her in an aggressive, "scary" manner, saying " 'I need some money, you have to give me some money.' " Carlino felt frightened, explaining that defendant "appeared out of nowhere"; he was "towering over" her; and he was using a "very deep," "booming" voice. Carlino's dog had run out of the house and was barking and circling around defendant's feet. While defendant was still talking, Carlino grabbed her dog and ran back into her house.
Marilyn Finley testified that on about March 30, 2009, defendant approached her while she was in her car in the shopping center's parking lot. The car window was down and her small dog was hanging out the window. Defendant asked her for money, and when Finley told him she did not have any, defendant said, " 'How would you like it if I break your dog's neck?' " Finley, who was "bewildered" and "shock[ed]," said " 'Are you kidding?' " and " 'I don't believe so.' " Defendant then walked away.
Natalie Brown testified that on April 2, 2009, while she was outside smoking during a break from her job at the shopping center, defendant approached her and asked if she had any change. After Brown looked in her wallet and said she did not have any, defendant asked for a cigarette. Brown gave him one, but defendant became agitated and angrily yelled at her: " 'No . . . . I want more. . . . [¶] . . . [¶] Give me some damn money.' " Brown was shocked and startled and thought he was being rude, so she yelled back at him: " 'Get away from me, I'm not giving you anything else.' " One of Brown's co-workers then walked over, and defendant left.
At about 8:00 a.m. on April 3, 2009, Frances Lotito was at a bagel shop across the street from the shopping center where the stabbing occurred. Defendant approached her as she was getting out of her car and asked for money. When she told him she did not have any, he became very agitated and said, " 'You're lying. You're lying. Give me some money.' " She told him she would if she had some, but she did not have any. She walked around her car and grabbed her purse from the passenger's side of the car. Defendant cornered her next to her car and said, " 'You're lying to me. You look like a rich woman. Give me some money.' " She told him she was sorry but she did not have any money, and quickly went into the bagel shop. He followed her into the shop, leaned up against the counter with his arms crossed, and glared at her. She asked the bagel shop employee to call the police, but the employee did not do so. Lotito then saw defendant talking to some other people, who handed him something, and he then left. Lotito testified she felt very frightened during the incident.
Defendant was tried for first degree murder on a premeditated murder theory and/or felony-murder theory (based on attempted robbery). The jury convicted him of first degree murder, found that he personally used a deadly or dangerous weapon (a knife) during the murder, and found true the special circumstance that he committed the murder during an attempted robbery. After the jury's verdict, defendant admitted that he had incurred a strike prior conviction, prior serious felony conviction, and prior prison term.
To assist with the determination of the sanity issue, defendant's mental state was evaluated by two court-appointed experts (Drs. David Naimark and Glenn Lipson) and by an expert retained by the prosecution (Dr. Park Dietz). Defendant was personally interviewed by the two court-appointed experts; however, he refused to be interviewed by the prosecutor's retained expert, Dr. Dietz. The experts reviewed numerous materials relevant to the sanity issue, including police and medical reports related to the offense; videotapes of defendant at the police station after the offense; statements defendant made to his mother and Dr. Naimark concerning the offense; and defendant's criminal and mental health history.
Drs. Dietz and Naimark testified for the prosecution and Dr. Lipson testified for the defense. The experts agreed that defendant suffered from schizophrenia and had a history of delusional behavior, including being naked in public and claiming to be Jesus. Drs. Dietz and Naimark opined that notwithstanding his mental illness, defendant understood the nature and quality of his act and the difference between right and wrong at the time of the offense. In support, the prosecution's experts cited such factors as defendant's carrying of a concealed fixed-blade knife; his goal-directed panhandling before the offense; his conduct reflecting he was motivated by anger and a desire for money; his postoffense conduct suggesting he knew he would be arrested; his statements to the police during a videotaped interview giving examples of matters he perceived as wrongful and reflecting that he was not "grossly psychotic"; and his statements to his mother and Dr. Naimark referring to the victim as an "unlucky" person and indicating he committed the offense to get attention from people he perceived as having wronged him.
Testifying on behalf of the defense, Dr. Lipson explained that in his written report he had concluded defendant did not fully appreciate the nature and quality of his actions and did not have the ability to tell right from wrong. Dr. Lipson opined that defendant made statements and exhibited conduct indicating he experienced delusions; a video of defendant in a holding cell after his arrest (before he was interviewed by the police) showed he was suffering from psychosis; and defendant would not have reacted as violently as he had if not for his delusions. However, Dr. Lipson testified that ultimately he rendered a "soft opinion" on the sanity issue because there were factors that could support both sanity and insanity and he was not able to conclude "100 percent" that defendant was insane.
Sanity Phase Verdict and Sentence
At the conclusion of the sanity phase of the trial, the jury found defendant was sane at the time he committed the offense.
Based on the special circumstance finding of murder during an attempted robbery, defendant was sentenced to life without the possibility of parole. He also received a seven-year determinate sentence based on the enhancements for personal use of a deadly weapon, the serious felony prior, and the prior prison term.