Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Mariposa County. Timothy S. Buckley, Judge. (Retired Associate Justice of the Court of Appeal, Fifth District, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super. Ct. No. 06-4987
Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant James Wilson Branson was convicted of the first degree murder of his half-brother, Ronald Dean Hibpshman. In addition, the jury found that he intentionally discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)) and personally used a firearm (Pen. Code, § 12022.5, subd. (a)). He appeals, claiming the trial court erred in ruling that his expert was not qualified to testify about the effect of alcohol on Native Americans. Additionally, he asserts the trial court erred in merely staying punishment rather than striking the personal use of a firearm enhancement. We affirm.
All future code references are to the Penal Code unless otherwise noted.
FACTS
On January 21, 2006, defendant contacted his friend of six years, Gregory Ravert, and asked him if he wanted to go to Lester Rairigh’s house. Defendant was driving his old pickup truck. Ravert agreed to go. Before they left, they drank some red beers. They then went to the store and bought a 20-pack of beer, some brandy, and some chicken.
While he was at the store, defendant came in contact with his relative, Angela Morrow. Morrow saw that defendant had a gun in his truck. She asked him if he was going hunting and he responded, “Something like that.” As Morrow and defendant shared a piece of chicken, defendant pulled out a shotgun shell. He shook it back and forth and smiled. Morrow asked defendant what he was doing and defendant was silent. Morrow had never seen defendant act this way before.
Defendant and Ravert left the store and returned to defendant’s home so Ravert could see the work that defendant had done on his house. They continued drinking and drove to Rairigh’s house. While on the way to Rairigh’s house, they got out and fired defendant’s gun using new .22 ammunition defendant had obtained.
While at Rairigh’s house, defendant’s demeanor changed. He got mad and wanted to leave. Ravert got in the car with him. Defendant was upset and Ravert could not understand what defendant was saying. Defendant was driving like a “wild bull.” Ravert unloaded the ammunition from the gun. Defendant was yelling, cussing, and driving ridiculously. Ravert made defendant stop the truck and let him out.
On this same day, victim Hibpshman (defendant’s half-brother) was working with John Palmer on a piece of land where the new Midpines Bible Church was going to be built. Hibpshman was the pastor of this church. Defendant had driven by the site sometime during the day and Hibpshman yelled up to him that their work was almost done. Later that day, after 2 p.m., defendant drove down the narrow road to the site. Hibpshman said to Palmer, “That’s my brother. I’m going to go talk to him.”
Hibpshman walked over and stood next to the driver’s door of defendant’s pickup. Shortly thereafter, Palmer walked towards the truck to introduce himself to defendant. When he approached the truck, he heard defendant say to Hibpshman, “Why are you always trying to bring the … white man into everything?” Hibpshman responded, “[W]hy is it all about the Indian with you?” Defendant was slurring his words, but Palmer could understand what he was saying. After hearing this, Palmer retreated to Hibpshman’s truck, not wanting to interfere with this private conversation.
As Palmer was drinking some water at the truck, he heard a gunshot and two seconds later he heard another gunshot. Hibpshman fell to the ground. Defendant put his truck in reverse and quickly backed up the narrow road. Palmer rolled Hibpshman over on his left side and left to call emergency personnel.
C.M. lived above the location of the church. He was outside shooting his pellet gun when he heard an older truck pull up on the dirt road. He walked down nearer to the church site. He heard a shot, he then saw a second shot and saw Hibpshman fall backwards. The truck started backing up “real quick.” C.M., who was only 13 years old at the time of the shooting, ran back to his house and barricaded himself inside.
Emergency personnel arrived at the scene of the shooting. Hibpshman was removed from the scene by ambulance and died later at the hospital. Officers gathered information and obtained a description of defendant’s truck. Mariposa County Sheriff Sergeant Mark Jones saw a truck matching the description of defendant’s truck sometime after 4 p.m.. He followed it, and defendant drove the truck into his driveway and went into his house. Jones notified other units.
Jones called defendant, and defendant’s first remark was, “How’s Ronnie [the victim].” Defendant then said, “He pulled a gun on me. Ronnie pulled a gun on me.” Although defendant seemed to understand what Jones was saying to him, Jones detected symptoms of intoxication in defendant’s voice. Defendant was angry and complained that he had tried to get help from the sheriff before but they would not help him. Defendant ended the telephone call.
Jones called and spoke to defendant again. Jones tried to get defendant to come out of the house. Defendant refused to come out because he knew the sheriff’s officers would shoot him. He said this was the start of the Miwok/White-man war. Defendant said he had figured out a way to handle it, “by putting a fucking bullet in his head.”
The standoff continued for several hours. During this time defendant spoke in full sentences. He threatened law enforcement officers outside his home. He said that his guns were loaded and he was ready. Defendant was taken into custody at approximately 9:30 p.m.
At 12:50 a.m., jail personnel tested defendant twice for the presence of alcohol on his breath; both readings were .00.
Defendant was interviewed by sheriff’s officers at the jail. A tape of this interview was played at trial. The interview began at 7:40 a.m. on January 22, 2006. Defendant was asked to tell the officers what happened the day before with Hibpshman. He said he did not know—it was foggy to him. Defendant said that he saw Hibpshman by the church site. Defendant had a gun with him; he thought it was a shotgun. He had been drinking a lot and he gets mad and pumped up when he is drinking. Defendant complained that Hibpshman kept the family home after defendant’s father died. Defendant was upset that he had to buy the house back from Hibpshman.
Defendant said that there were a bunch of people working at the church site. Defendant recalled going to the church site. He was upset and had been drinking. Hibpshman came walking towards him and reached for defendant’s gun. It went off. Defendant did not remember pulling the trigger. He left and cooled off somewhere, but he could not recall where he went. He said he threw the gun somewhere after the shooting but he did not know where he threw it. When the officers suggested to defendant they would not want the gun to be found by children, defendant replied that he cared about children and that was not going to happen.
Defendant recalled drinking the day before. He said he carried a gun with him all the time. When asked what happened to his driver’s side rear view mirror, he said it had been knocked off earlier in the day. He expressed more than once his inability to recall what happened the day before. He asked the officers how Hibpshman was. The officers told him Hibpshman was dead.
At the scene of the shooting, officers recovered fragments from defendant’s driver’s side rear view mirror. Defendant’s truck was searched. Officers retrieved ammunition from the truck. Some of the ammunition matched ammunition Ravert gave to officers. There was an almost empty bottle of brandy in the truck as well as beer bottles. Several guns were removed from defendant’s home.
During his testimony, Ravert identified People’s exhibit 53 (the exemplar gun) as a gun just like the gun defendant had in his truck the day of the shooting and the gun that Ravert and defendant used that morning to shoot at squirrels.
George Luczy, an independent forensics firearms and explosives consultant, looked at different rounds of ammunition. The cartridge removed from defendant’s truck and the cartridge retrieved from Ravert were the same type of ammunition. The shot removed from Hibpshman was consistent with having struck something hard before it entered Hibpshman’s body.
Luczy testified that in order to use the exemplar gun one would have to load it, close it, manually cock it, and pull the trigger. The gun can be shot as a rifle or a shotgun (an “over-and-under” gun). In order to change from shooting it as a rifle to shooting it as a shotgun, or vice versa, the selector switch had to be manually moved. The gun can be loaded with shotgun shells and .22 ammunition at the same time.
Another half-brother of defendant, Robert Hibpshman, said that the exemplar gun looked like one of the guns defendant owned.
Dr. Wilkerson, a pathologist, testified that Hibpshman died from a shotgun wound to the right side of his face and head. There was stippling on his body, which indicated that the gun had been discharged at a close range, approximately four feet. There were small fragments of glass and paint material on Hibpshman’s body.
Neither the gun nor defendant’s driver’s side rear view mirror was found.
Defense
Defendant’s friend, Robert Beattie, testified that he has known defendant for 20 years. A month or two before Hibpshman’s death, Beattie accompanied defendant and Hibpshman on a trip to pick olives. Defendant and Hibpshman acted normally towards each other that day. On another recent occasion defendant came over to Beattie’s and got some geese and took them to Hibpshman.
On the day of the shooting, Beattie was listening to his police scanner. He determined that defendant was a suspect in the shooting of his brother. Beattie called defendant and left a message. Defendant called him back. Defendant was drunk. Beattie asked defendant what was going on and told defendant what he had heard on his police scanner. Defendant asked Beattie a couple of questions and did not seem to know what Beattie was talking about.
Lester Rairigh testified that he has known defendant for a number of years. In the early afternoon of January 21, 2006, defendant came to his house with Ravert. Defendant was driving his pickup truck. Rairigh testified that it takes approximately 45 minutes to make the seven and one-half mile drive to his house because the road is so rough. Defendant was drunk when he arrived, as drunk as Rairigh had ever seen him. Defendant wanted to go deer hunting, but Rairigh said no. Rairigh’s wife testified that defendant appeared to be drunk and was leaning on his truck. In addition, defendant left a voice mail earlier in the day and he was slurring his speech in the voice mail.
Jean James testified that she left the house she shared with the defendant at 10 a.m. on January 21, 2006. Defendant had already left the house when she left. James said she had never heard defendant speak “ill” of his brother Ron Hibpshman (the victim).
Defendant’s daughter spoke to him the evening of January 20, 2006. Defendant did not say anything negative about Hibpshman during their conversation.
Christopher Kohn was in Mariposa for a bike ride on January 21, 2006. Kohn had stopped when defendant drove by in his pickup truck. Defendant said hello and asked Kohn if he had any beer. Kohn thought defendant was acting strangely and was obviously drunk. Kohn left.
Defendant testified on his own behalf. Defendant testified that he is a Native American. He lives in the house he was born in. At one point in time, Hibpshman moved into the house to take care of defendant’s father. When the father died, Hibpshman remained in the house. Hibpshman was going to sell the house and this disturbed defendant. They had a family discussion and defendant bought the house from Hibpshman. Defendant let his sister live in the house, but she trashed it. Defendant reclaimed the house and moved back in with his girlfriend, Jean.
On January 21, 2006, defendant began drinking at 8 a.m. He then got Ravert and they purchased a 20-pack of beer and bottle of brandy. They returned to defendant’s house where he drank more, including some whiskey. Defendant remembered going to Rairigh’s house, but did not remember much after that. He had a gun with him—a 20-gauge “over and under.”
Defendant remembered that Hibpshman came to his truck and they were talking about Indians and White people. Their argument got heated. Defendant started to show Hibpshman his gun. He stuck it out of the window of his truck and it went off. Hibpshman grabbed the gun and it went off again.
Defendant left. He was shaking and nervous. He could not remember doing anything with the gun or the mirror from his truck. He remembered going back to his house and calling Beattie. He remembered talking to Sergeant Jones and refusing to come outside because he was scared.
Defendant detailed a life of heavy drinking beginning at age 12. He also takes several medications for health problems including diabetes and high blood pressure. He was told not to mix alcohol with his medications.
Defendant did not want Hibpshman to die and did not intend for him to die. He testified that if he had something to do with Hibpshman’s death he was very sorry.
Melvin Beck with, a certified substance abuse professional testified as an expert. He reviewed the case file and talked to defendant for two hours. It was his conclusion that defendant is an alcoholic.
Beck with testified that alcohol impairs the brain. A person drinking alcohol may have alcohol-induced amnesia, a.k.a. a blackout. These can be of two types. One is fragmentary where the individual cannot recall bits and pieces of events and the other is a complete blackout where the individual has no recall. Some people can function during a blackout but have no recollection of what they do. Beck with also testified that people’s tolerance can change. Alcoholics can drink more and more without showing the effects, but at some point their tolerance decreases and they consume less to reach the same level of impairment. It was his opinion that defendant was a late-stage alcoholic in the severe range. Thus, the effects of the alcohol would hit him faster. If defendant was impaired, he would not be able to make a connection between what he should not do and his behavior.
Based on defendant’s zero alcohol reading at 1 a.m. on January 22, 2006, it was Beck with’s opinion that if defendant stopped drinking at approximately 2 p.m., but had been drinking prior to this, the highest his blood alcohol level could have been at 2 p.m. would have been in the range of .175-.24 percent.
Rebuttal
Michael Don Shore, a licensed psychologist, testified that during an alcohol-induced blackout individuals do not remember their actions and decisions. Their memory and decisions can be faulty. To evaluate individuals’ mental decisions, one does not look at their memories because the memories are gone. One looks to the individuals’ actions at the time to see if their actions were purposeful and if their actions indicate they were able to make choices. To evaluate them, one would look to see if they were acting with deliberation and care at the time they were in a blackout.
Luczy testified that there is no way to accidentally discharge the exemplar gun without pulling the trigger. Everything on this type of gun has to be done manually. After the gun is fired, the entire cycle has to be repeated manually before the gun can be fired again.
DISCUSSION
I. Qualifications of Expert
Defendant contends the trial court erred when it found defendant’s expert was not qualified to testify regarding the effect of alcohol on Native Americans. “Expert opinion testimony is admissible only if it is ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ [Citation.] ‘A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.’ [Citation.] ‘“The competency of an expert is relative to the topic and fields of knowledge about which the person is asked to make a statement.”’ [Citation.] We review the trial court’s ruling on the admissibility of expert testimony for abuse of discretion. [Citation.]” (People v. Watson (2008) 43 Cal.4th 652, 692.)
Defendant proposed that his expert, Beck with, would testify that Native Americans may be genetically disposed to have a low tolerance to alcohol. The district attorney objected, stating he did not believe the expert was qualified to talk about Native Americans and noted there was a split in the authority on the question of alcohol tolerance by Native Americans. The court conducted an Evidence Code section 402 hearing to determine if the expert was qualified.
Beck with testified that he has been an alcohol counselor since 1986 and in private practice since 1992. He has been exposed to information about Native Americans and tolerance for alcohol in his education and training. To be certified he is required to take 30 hours of classes each year and the classes include ethnic studies. He worked for the Department of Corrections as a teacher in the Hanford parole office for approximately a year, where approximately 25 to 30 percent of the clientele were Native Americans. He taught substance abuse classes to these parolees to teach them transition skills after being released from prison. Beck with testified that in his experience and in the studies he had read Native Americans have a much different reaction to alcohol than the general population. He said he has read studies on both sides of the issue.
On voir dire by the prosecution, Beck with was asked whether he could tell the court if some of the literature he was familiar with was contradictory to what he said in court. He said he would not be able to say right off the top of his head. He was asked if he brought any of the literature he used to support his position. He said he would not be able to bring all that information to court without a truck to haul the materials. He was asked to speak about studies he was familiar with that supported his position. He said he could not quote studies that are not at his fingertips. He was asked to give the name of one study and who the author was. He was unable to do that.
Regarding his experiences in Hanford, he said that the students in the classes were not generally under the influence at the time of class; his beliefs were based on his assessment of the clients and their history. He acknowledged that individuals are not always truthful when they give their history. He stated that the area where he now practices has a very small Native American population. He estimated that he had probably come into contact with 50 Native Americans during the course of his counseling. He testified that he also talks to other therapists who work almost exclusively with the Native American population. Beck with did not have any familiarity with any of the studies the prosecutor asked him about.
In Beck with’s report for this case, he did not mention anything about the effects of alcohol on Native Americans. His report quotes frequently from the Diagnostic and Statistical Manual (DSM-IV) used by mental health professionals to determine if specific criteria have been met to determine whether or not the individual has a substance disorder.
Beck with acknowledged that the DSM-IV talks about cultural differences and said the manual distinguished Native Americans from other population groups, yet when handed the manual he was unable to locate such a reference in the book.
The court found Beck with, while qualified to testify as an alcohol counselor, was not qualified to testify in the target area of the effect of alcohol on Native Americans. In particular the court stated it recognized that Beck with had read considerably in the general field, but his “so-called studies” for one year in Hanford of a group of uncertain ethnic component were insufficient to qualify him as an expert in this area.
Based on the above, we cannot say the trial court abused its discretion when it found the defense expert was not qualified to testify about the effects of alcohol on Native Americans. Beck with testified that his knowledge was based on his review of studies, too many to bring into court; yet he was unable to discuss with any particularity any of these studies. Although he claimed to have special knowledge about Native Americans, he never mentioned anything about Native Americans in his report regarding defendant. Although asserting that he relied on the DSM-IV and it contained information about Native Americans, he was unable to find such information in the DSM-IV when asked to do so.
Defendant relies on Miller v. Silver (1986) 181 Cal.App.3d 652, a medical malpractice case involving plastic surgery. In Miller, the appellate court held that while a medical doctor may not be qualified to testify concerning the surgical technique of doctors in the highly specialized field of plastic surgery, the trial court did not err in permitting a medical doctor to testify as an expert on the use of prophylactic antibiotics in plastic surgery patients. “Where the allegations of negligence concern matters within the knowledge and observation of every physician and surgeon and ‘not to a special course of treatment to be tested by the teachings and doctrines of a particular school,’ the testimony of a non-specialist physician can still aid the trier of fact in its search for the truth. [Citation.]” (Miller v. Silver, supra, 181 Cal.App.3d at p. 661.)
This case presents a scenario opposite to that in Miller. Here the defense sought to have a general expert testify in a specialized area in which he did not possess any training beyond that necessary for the general field of alcohol counseling. Defendant did not demonstrate that he had any specialized education except a generalized education on ethnic differences.
The trial court did not abuse its discretion when it found that Beck with was not qualified to testify as an expert on the effects of alcohol on Native Americans. Because the trial court did not abuse its discretion in excluding Beck with’s testimony, defendant’s federal constitutional claim also lacks merit. While a defendant has a constitutional right to present his defense, this right does not preclude the state from applying ordinary rules of evidence to determine whether such evidence is admissible. (People v. Watson, supra, 43 Cal.4th at pp. 692-693.)
II. Stay of Punishment Imposed for the Section 12022.5 Enhancement
The trial court sentenced defendant to a term of 25 years to life for the first degree murder conviction. The court imposed a consecutive sentence of 25 years to life for the intentional discharge of a firearm causing death enhancement (§ 12022.53). It then imposed and stayed the imposition of the midterm of four years on the personal use of a firearm enhancement (§ 12022.5).
Defendant contends the section 12022.5 enhancement must be stricken rather than merely staying the punishment for the enhancement.
This issue has recently been determined in People v. Gonzalez (2008) 43 Cal.4th 1118. The Supreme Court in Gonzalez held that the proper procedure is to impose and then stay the excess firearm enhancements. The trial court here followed this procedure and thus there is no error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, J., GOMES, J.