(Super. Ct. No. 08F03297)
The opinion of the court was delivered by: Butz , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Dennis Robert Mains guilty of first degree murder, during which he personally used a gun. It then found he was sane at the time of the crime. The trial court sentenced him to state prison for the prescribed term.
Indisputably guilty of the act of homicide, defendant attempts to find reversible error in connection with his proffered defenses of provocation from the victim and his purportedly psychotic state of mind. To this end, he challenges the trial court's refusal to instruct on mistake of fact stemming from medicinally induced hallucinations; its failure to instruct on the elements of second degree murder; its failure to allow consideration of voluntary intoxication in connection with the subjective mental states involved in the elements of provocation or imperfect self-defense; and its refusal to admit evidence bolstering his testimony that he thought the victim was poisoning him and had behaved violently toward him. He also contends the trial court erred when it failed to grant a continuance after the prosecution provided a large amount of discovery on the eve of trial. We shall affirm the judgment.
Defendant and the victim met in 1995. They were married three months later. It was a tempestuous relationship. The victim left defendant four times between 1998 and 2006, but each time they reunited.
Defendant testified that the victim had tried to stab him three times over the years (reporting one of these incidents to his daughter). He also asserted that the victim had tried to kill her previous husband with a gun. On the other hand, a friend had observed the victim with physical injuries on three occasions, which the victim attributed to defendant (a claim defendant denied at trial). The victim's brother had also noticed bruising on the victim, and warned defendant against doing anything like that to her again.
Both defendant and the victim obtained restraining orders against the other at different times. During one of their separations, defendant reported a violation of the restraining order against the victim to the police; he repeatedly said to the officer that he was afraid of the victim because she had previously threatened to kill him and could obtain a gun,*fn1 and he had learned someone was trying to locate him (even though he had not seen the victim in several months, who was in Arizona). Although unable to contact the victim, the responding officer filed a report pursuant to a city protocol with respect to restraining orders.
Defendant testified that the victim was verbally abusive, and he shared with his daughter his belief in the victim's ongoing infidelity. He also testified that between 2005 and 2008, he had awakened four times to find the victim was spraying him with an arachnicide, and he once caught her pouring something from a small bottle into his milk container. He had told "seventeen different people" about the poisonings, including his daughter. Defendant sought hospitalization a dozen or so times for various physical and mental problems in the years preceding the murder. In his view, these were a result of the dosings with the arachnicide. His ailments included a "nervous breakdown," paranoia, hallucinations, panic, nausea, vomiting, headaches, and profuse sweating. However, he never told anyone at a hospital about the poisonings because he would be rendered homeless if the victim were arrested. He also testified that he had tried several times to kill himself. At trial, he said his present medications mostly abated the hallucinations, but it was hard for him to focus.
A doctor testified that she had treated defendant during a hospital stay for sedative withdrawal in April 2007, when he appeared confused, agitated, anxious, and short-breathed, and reported chest pains and hallucinations. His stay was a week long. She prescribed an antipsychotic, though strictly as an additional sedative--she did not believe defendant's claims of hallucinations.
An emergency room (ER) doctor testified that he had twice treated defendant, in April and December of 2007. Defendant reported his belief in the first ER visit that a catheter had not been removed from his arm after a previous hospital visit, and asserted that he was having hallucinations. Defendant also claimed to have a history of schizophrenia. On the second occasion, defendant reported having chest pains (along with other physical ailments). The ER doctor did not find any foreign body present during the first visit, and all cardiac tests appeared normal on the second. At the time, defendant had prescriptions for a sedative and a high blood pressure medication. A sedative overdose could lead to lethargy and confusion, but the doctor had not seen any signs of this. Sedative withdrawal could have led to the symptoms defendant reported on the second occasion.
In 2006, the victim and defendant had moved into a studio behind a house that the victim's daughter was renting. In March 2008, the victim filed for divorce, and intended to move elsewhere with her daughter. The daughter testified defendant refused to execute the dissolution agreement unless he was paid $5,000; the daughter paid him $3,000 and he signed the documents. However, he did not move out as he had promised to do. Defendant explained at trial that he had signed the documents only under threat of being put out on the street, ill and without any assets. Defendant then bought a gun with some of the money he had received. He testified that he needed it because he was in fear of the victim's family, who had been threatening him. (In his interview with the police, however, he had claimed he bought it for purposes of suicide.)
In April 2008, after inpatient treatment for mental health issues (apparently after a suicide attempt), defendant was referred to a halfway house clinic called T-Corps to help him transition to outpatient treatment for his depression. A physician's assistant (PA) specializing in psychiatry who worked there testified that only a person with asevere mental health problem would be referred to T-Corps. The PA met with defendant on April 22. The PA diagnosed defendant as having severe recurrent depression with psychotic features, and generalized anxiety disorder. The PA based this on defendant's report of episodes of depression and anxiety over the years, arising out of his difficulty with relationships (having been married six times) and his vague claims of auditory hallucinations over the past 18 months (which is actually a symptom more characteristic of schizophrenics who experience an onset of their disorder as young adults). Defendant appeared properly oriented to reality during the evaluation. Defendant also told the PA that he was afraid of the victim's family, who were dangerous people who might hurt him. Defendant again did not say anything at T-Corps about the victim poisoning him. Defendant seemed overwhelmed with grief over the loss of his marriage and his home. The PA changed the type of sedative prescribed for defendant, because defendant did not feel it was working and patients develop a tolerance for sedatives. Side effects of the new sedative could include a lowering of inhibitions, a paradoxical increase in anxiety, and drowsiness. However, hallucinations or psychosis are not listed among the typical adverse reactions from use of the drug (as opposed to an abrupt withdrawal from its use). The prescription limited defendant to two milligrams once per day for the first three days, then twice a day thereafter. Defendant mentioned having a history of abusing sedatives over the previous 15 years.
Defendant began taking the new sedative the next day. He took twice as much as prescribed. At trial, he asserted that the medication made it hard to control his emotions and made him feel aggressive. He also began to experience hallucinations.
Defendant visited a longtime friend on April 24. The friend testified defendant was distraught about the divorce; he complained about the victim being physically and verbally abusive, and may have mentioned his belief that she had been poisoning him. He also shared his fears about her family menacing him. Defendant said he was upset that the victim would be living in a nice house while he would be near homeless. Defendant made vague allusions to having hallucinations.
A T-Corps mental health worker assisting in defendant's case management met with him later that day to discuss housing. The T-Corps worker had done intake work with defendant in early April, and had been present during the PA's evaluation of him two days earlier. Defendant's mood seemed to have improved, and defendant told him that the new medication made him feel better without upsetting his stomach.
At trial, defendant said he had taken two more of the sedatives on April 24 and had been feeling okay during the day when visiting with his friend (and presumably during his meeting with the T-Corps worker), but his hallucinations got worse that evening. He thought the victim looked like a black blob, and then a frog, sitting on the bed.
The following morning, the hallucinations were worse and defendant felt shaky. Objects appeared to be melting and flying through the air; the floor rose, and a tuba appeared (playing visible musical notes). Defendant heard a deep voice saying, "break the curse." He had been hearing this phrase for a couple of months, and believed ...