Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050400606
Lambden, J.
Defendant Adnan Anjum Khan appeals from a final judgment of felony murder conviction. Defendant argues that the trial court violated his due process right to present a defense by misconstruing case law, Penal Code section 29, and evidentiary rules to exclude evidence of the killer’s mental illness for the purpose of applying the felony-murder rule. Defendant also argues the trial court failed to give adequate jury instructions, instead giving erroneous instructions that were tantamount to a directed verdict. We affirm the judgment.
BACKGROUND
The Contra Costa County District Attorney filed an information in January 2004 charging defendant and Rick Asheed Page with the first degree murder of Kevin Leonard McNutt under special circumstances, in violation of Penal Code sections 187 and 190.2, subdivision (a)(17), specifically alleging that the murder occurred in the course of a robbery. Defendant and Page were also charged with second degree robbery, in violation of Penal Code sections 211 and 212.5, subdivision (c). The trial court severed their trials, and Dr. Jules Burstein, appointed by the court, found Page incompetent to stand trial. The trial court ordered forcible medication to restore Page’s competency, which order Page appealed.
Before trial, the court considered motions which raised the issue of whether or not evidence of Page’s mental illness was relevant to the application of the felony-murder rule against defendant, as well as to whether or not defendant acted with reckless indifference to human life pursuant to Penal Code section 190.2, subdivision (d). We discuss these matters further, post.
We briefly summarize evidence presented at trial relevant to our discussion of this appeal. The parties do not dispute that on March 24, 2003, Page stabbed McNutt repeatedly outside Page’s van immediately after defendant hit him over the head inside the van in an effort to steal marijuana from him, as part of a crime concocted with two others earlier in the day. The jury viewed a videotape of defendant’s interview with police on March 25, 2003, the day after the incident, and was provided with a transcript of this interview. In response to the first question about what happened, defendant said regarding McNutt: “Man, I have no idea, man. We got—we were basically supposed to rough him up. We had no weapons, nothing, you know? And then I don’t even know the guy, I had no idea—I don’t know, man.”
Defendant indicated that McNutt “had some marijuana. And then, you know, we don’t have any money and are not gonna buy it. And you know, like let’s take it from him[.]” He stated that he did not have any weapons, that he “hit him in his head 'cause this guy, he looked back and tried to, you know, tried to get me, wrestle with me or something. So I just, my first instinct, just hit him. So I hit him and then that’s when he’s all like he tried to get out the car.” He continued: “And then [Page], I thought he was just fighting with him, he was just started fighting outside. So I ran out, I went—had to go through the front 'cause the side door doesn’t open, went to the front. [¶] I’m like, ‘get in the car.’ I'm screaming. I was like, ‘Get in the car, [Page]. Get the fuck in,’ just going crazy, you know, ‘Get in the car. What the hell are you doing?’ [¶] And then I thought he was swinging at him, you know, punching him and shit. And I just seen him bleeding and stuff. And I’m like, ‘Get in the car.’ I’m hella yelling, I don’t know, and then we just left. [¶] I’m like, you know, ‘What the fuck did you do?’ [¶] He’s like, ‘I stabbed him.’ [¶] I go, ‘What?’ I had no fucking idea. I told him, ‘Don’t get me fucking involved.’ I didn’t—I don’t even do shit like this. I didn’t get arrested like this, you know.”
According to defendant, Page just “went crazy” when he stabbed McNutt. “It’s like [Page] snapped or something, all of a sudden. You know, I don’t know what the fuck happened.”
In the course of the interview, defendant stated that he and three others, including Page, had planned earlier in the day to steal the marijuana from McNutt. He and Page were supposed to meet McNutt and, when McNutt showed them the marijuana, he was going to just grab it and run. Defendant stated “[w]hen he was talking to them, I was there to run with it, man, you know.” He repeated more than once that his role was just to grab the marijuana and run. He explained that, “[o]nce it’s in my hand, I was gonna run as fast as I can, and [Page] was gonna come just get me in the car.” Defendant did not explain how Page was to leave McNutt behind so that he, Page, could pick up defendant in his car.
Upon further questioning, defendant stated, “We’re not supposed to have any weapons. I was supposed to rough him up and take—you know, I was supposed to run, first of all.” Defendant also stated, “I didn’t know [Page] had a knife. I didn’t know he did anything. He didn’t tell me shit. I didn’t have—we didn’t have no weapons. We were supposed to—you know what I’m saying, I was supposed to run it. That was the fucking plan.”
Defendant made further references to the plan. He stated about the accomplices who he said initiated the idea for the crime, “they brought [McNutt] to get jacked, you know.” When asked if he knew McNutt was seriously injured or dead, he replied, “No, I didn’t know that. See, I didn’t know he was like that. I didn’t know he was gonna be hurt that bad. Once I found out he shanked him, I was like, shit. You know, that shit—we had—,” and after a brief interruption, added, “—no weapons were supposed to be involved.”
Later in the interview, defendant explained that while they intended to meet McNutt in the park at first, he and Page ended up in Page’s van following McNutt’s car down the street, at McNutt’s suggestion. They pulled over and, as defendant approached McNutt’s car, McNutt exited, indicated the marijuana was in his pocket, and suggested that they go in Page’s van to conduct the transaction. Defendant thought that he could not run now. When he was asked if this was when he “came up with the plan to just cock him one time,” defendant replied: “No, I wasn’t even gonna cock him. I was gonna basically do what I was gonna do. I was gonna take it all and just tell him to get out or I’m gonna hurt you, you know, rough—you know, we didn’t have no weapons, nothing, so that’s all we were left with, you know.”
The following exchange then occurred:
“DET. SCHNEIDER: Well, but you said, you said in the beginning when I first talked to you, you said that the plan was just to rough him up.
“MR. KHAN: Yeah.
“DET. SCHNEIDER: But the plan, but the plan
“MR. KHAN: Just to get—if he goes down there to get the weed, to get the weed.
“DET. SCHNEIDER: But then the plan, you tell me that the plan was to do a grab and run.
“MR. KHAN: No.
“DET. SCHNEIDER: So at what point did it change?
“MR. KHAN: That’s what I’m saying, it changed 'cause we were supposed to meet him in the park. Hella shit, just—we thought of hella shit.
“DET. SCHNEIDER: Okay,.
“MR. KHAN: I mean not hella shit but
“DET. SCHNEIDER: When did it change?
“MR. KHAN: When we didn’t meet him in the park. It didn’t change, it just happened. Nothing changed, you know. We didn’t like physically change nothing. It just happened. He came to the car, you know, and I don’t know what to do. [¶] They told me, you have to get, you know, you have to get this quarter. I’m thinking I got to get it somehow, you know.”
At trial, one of the other participants in the crime, David Cedeno, testified that as of March 24, 2003, defendant was staying at Cedeno’s Pittsburg residence, having met Cedeno three to four weeks before; Page was Cedeno’s friend. That morning, Cedeno and one of his other friends, Robert Wilson, purchased a quarter-ounce of marijuana from a man who called his cousin, McNutt, to arrange an additional purchase, and told Cedeno and Wilson that McNutt would come to Antioch about 5:00 p.m. Sometime that afternoon, Cedeno, Wilson, defendant, and Page were smoking marijuana together when Wilson mentioned McNutt and “started talking about doing . . . a drug rip.” He said “that we wouldn’t have to touch them or anything, we just take it and run.”
Cedeno testified that because he and Wilson knew the seller, they arranged for defendant and Page to steal the marijuana. Cedeno would represent to McNutt that defendant was Cedeno’s cousin and direct McNutt to a nearby park, where Page or defendant would grab the marijuana and run, and the other would be driving the car. Cedeno discussed with defendant, Page, and Wilson “that no violence was to happen” to McNutt.
Shortly before 5:00 p.m., defendant and Page went to the park. However, McNutt and a friend did not arrive until approximately 7:00 p.m. Eventually, McNutt suggested they just “go down the street somewhere,” to conduct the transaction and Cedeno agreed, accompanying McNutt and his friend in McNutt’s vehicle and instructing defendant and Page by phone to follow McNutt’s vehicle. McNutt drove a short distance and he and Page pulled over. McNutt, defendant, and Page exited their vehicles and greeted each other. Cedeno still understood that defendant would grab the marijuana and run, and that no weapons would be involved.
McNutt then indicated he wanted to conduct the transaction in Page’s van, where he could weigh the marijuana with a scale. Cedeno said to weigh it in the van. He did not hear Page or defendant object to going in the van. No one suggested doing the transaction anywhere else. Cedeno thought that McNutt would give defendant the marijuana to weigh in the van, and that defendant would run from there.
Cedeno remained in McNutt’s car and acted as if everything was normal. He heard a loud thump on the back of McNutt’s car, and saw what he thought was Page and McNutt fighting. He got out of the car, saw McNutt wobbling, Page in the middle of the street, and defendant drive up in Page’s car, yell at Page to get in the car and, when Page did so, drive away. Cedeno then discovered that McNutt had been stabbed, and learned later that night he had died.
The jury convicted defendant on both counts of the information, but found the special circumstance allegation was not true. The court sentenced defendant to state prison for the indeterminate term of 25 years to life. Defendant filed a timely notice of appeal.
DISCUSSION
I. Excluding Evidence of Page’s Mental Illness
Defendant argues that the trial court violated his constitutional rights by misconstruing People v. Cavitt (2004) 33 Cal.4th 187 (Cavitt), to exclude, as a matter of law, evidence of Page’s mental illness as irrelevant to the issues of felony murder. Defendant argues on appeal that the evidence was relevant both to Page’s specific intent to commit the requisite predicate felony, i.e., robbery, and to the requisite causal and temporal requirements for felony murder. Defendant further argues that in excluding all evidence of Page’s mental illness for the purposes of the felony murder charge, the trial court misconstrued Penal Code section 29 and violated defendant’s constitutional rights to present a defense, to raise a reasonable doubt as to an element of the offense, and to have the jury determine every material issue. These arguments lack merit.
A. The Proceedings Below
1. Motions to Continue the Trial
Defendant’s counsel raised the issue of Page’s mental illness in its motions to continue the trial, as well as in a motion in limine to admit testimony by Dr. Burstein about Page’s mental state; the People filed a competing motion in limine to exclude the evidence as well. In a June 2005 motion to continue the trial, defendant’s counsel argued that Page’s mental illness was relevant to defendant’s defense because “as a result of this mental illness [Page] thought he was assaulting an entirely different person than the victim of a drug theft.” In an October 2005 motion to continue the trial, defendant’s counsel repeated this argument, and also asserted that “[t]he plan was to have the victim hand over the marijuana to [defendant] and then defendant . . . would run to a waiting vehicle driven by [Page] to make the get-away. . . . The plan never contemplated the use of violence to obtain the marijuana.” In his papers, defense counsel stated that “expert medical evidence will be introduced to show that [Page] was not aware that an alleged theft from the victim was in progress where that his mental condition did not allow him to comprehend the necessary intent to steal.”
At the hearing on the October 2005 motion to continue the trial,
defense counsel argued that Page’s mental state was critical to the special circumstance aspect of the case. In distinguishing the present case from Cavitt, supra, 33 Cal.4th 187, he argued that evidence would show that Page “thought he was killing an entirely different person than the victim of this robbery.” (Italics added.) He continued: “So I do think . . . that I should be allowed to deduce evidence concerning Page’s mental state with regard to who he thought he was killing, or who he thought he was assaulting. And if it’s entirely unrelated to the robbery, but I think there’s no logical nexus between the alleged robbery and homicide that took place after the robbery. [¶] That’s the basis of my argument with regard to why I need psychiatric testimony, and why I need Page’s mental defense at his trial.”
The court concluded that, pursuant to Cavitt, supra, 33 Cal.4th 187, the killer’s subjective mental state was not relevant to felony murder: “I read [Cavitt] as saying that whether Page was killing Osama Bin Laden or the victim in this case is not relevant. The fact of the killing taking place during the robbery in the current case, and the robbery/burglary in the Cavitt case, and that there’s a logical nexus between those, it’s not something totally unrelated. [¶] So I don’t believe, based on the language in Cavitt, that as to the charges themselves Page’s mental state would determine the liability of Khan.”
2. Motions in Limine
In his motion in limine papers to the court, defendant argued that “[t]he evidence will show that . . . [defendant] did not know that [Page] was armed at the time of the incident. The evidence to be presented through the expert witness is expected to establish a defense to the charges. It is relevant to show [defendant’s] state of mind during the incident and that his state of mind was not that of reckless indifference to human life.”
This “reckless indifference” issue related to special circumstances that are not a subject of defendant’s appeal.
At the subsequent hearing on the motions in limine, the trial court, while discussing a motion to exclude defendant’s confession to the police, asked if the parties would stipulate that the court’s pre-trial rulings were “binding, now that we have started the process of the actual trial?” The parties so stipulated.
When the parties turned to the evidence of Page’s mental illness, which turned out to be Dr. Burstein’s testimony of his psychotic mental state at the time of the killing, defense counsel focused on its relevance to the “reckless indifference” issue, and again referred to the underlying crime as a “robbery”: “I say, as the court has said before, this is a state of mind issue. I’m not so much concerned about going into the mental state of Page to find out why or why he didn’t do it. I’m just going to show that he acted, at that particular point in time, within some sort of psychotic condition that [defendant] did not know about, and could not have known about. And that goes to the state of mind or to whether or not he acted with reckless indifference. Otherwise, you're saying every robbery is a special circumstance robbery.”
The court decided to hear Dr. Burstein’s testimony in an Evidence Code section 402 hearing before ruling. Subsequently, Dr. Burstein testified. He stated that he had “a vigorous and strong opinion that the best way to psychologically understand what motivated Page at the time he did what he did to McNutt is that he was psychotic, that that’s the best inference to make about what motivated that act.” However, he acknowledged that “it’s not unusual for people to get killed in the course of a robbery,” and that he thought Page knew when he stabbed McNutt that McNutt “was the intended victim of the drug rip off,” but that there was “a tremendous discrepancy between stabbing the victim 10 times and an attempted rip off of a minor amount of marijuana.” He acknowledged that he “had many murder cases in which the person intended to kill the person and stabbed them once, twice or three times.” The following exchange then occurred:
“Q. But if you wanted to make sure someone’s dead you would keep stabbing them until you were sure that they were going to die? That’s not irrational, is it?
“A. Well, to me, to me, it’s grossly irrational. I don’t see too many killings in which someone is stabbed 10 times, and absolutely have never seen a killing of this sort in the context of an attempt to steal marijuana. It seems to me crazy at its core.”
Pressed to explain, Dr. Burstein indicated his opinion that Page was psychotic at the time he stabbed McNutt was inferred not from his personal opinion, but from his understanding of Page’s history, including reports of a former girlfriend that he was perceived as “okay” and then “behaving in a way that was overtly crazy and paranoid,” the discrepancy Dr. Burstein observed in Page’s mental state when medicated and unmedicated some time after the incident, and Page’s grandmother’s statement that some time before the incident, Page had “irrationally tried to attack her when he was off medication.” He acknowledged that he had not interviewed Page about the two weeks prior to the murder and the day of the murder itself, that his “best understanding” was that Page had not been taking prescribed medication in the two weeks before the murder, based on his grandmother’s testimony that the most recent time a prescription had been filled was two days before the murder, that he did not know whether or not he was taking medication during the 48 hours before the murder, and that if he was this would be too short a period “to restore him to mental stability.”
Dr. Burstein also acknowledged that his conclusion that Page killed McNutt in a psychotic state was not based on any evidence he had of Page’s mental state on the day of the killing. He acknowledged that “nothing about [Page’s] demeanor suggested that he was agitated on that day or the people involved in planning this offense probably wouldn’t have wanted him to participate as the driver.” He agreed that, while he observed certain irrational behavior in Page when he interviewed him some time after the incident, he had no evidence that Page engaged in that type of behavior on the day of the murder, stating: “Not only is that correct, on the contrary, everything that I read, and everything that has been said about the offense, suggests that he was not, prior to that outburst.”
In his testimony, Dr. Burstein repeatedly indicated that Page had indicated in correspondence that he had participated in a planned “robbery.” Speaking about a letter by Page that he had reviewed, Dr. Burstein testified as follows:
“Q. Well, [Page’s] comments in those letters were, I was present when they planned a robbery, correct?
“A. Yes.
“Q. And I didn’t take part in the planning, but I knew that they wanted to rob the guy, correct, something along those lines?
“A. Yes.
“Q. And [Page] said he didn’t want to go along with it but then he decided he had to when the guy walked up to him, something along those lines, correct?
“A. Yes.
“Q. And he said he saw his crimey, as he phrased it, punch the victim during this robbery, correct?
“A. That's what he said, yes.
Dr. Burstein also referred to the crime as a “marijuana robbery.”
After Dr. Burstein testified, defense counsel once more argued that his testimony was relevant to the defense against the “reckless indifference to human life” allegation because defendant did not have any knowledge of what Page’s mental state or what he would do; in doing so counsel repeatedly referred to the crime again as a “robbery,” stating, for example, that “this was a marijuana rip off, or a robbery.”
The trial court, after raising the possibility that Dr. Burstein’s testimony was excluded under Penal Code section 29, found that Dr. Burstein’s testimony must be excluded on foundational grounds and concluded, “there is no evidence that during the day of this homicide, or during the planning of this homicide, there is any unusual, irrational, bizarre behavior taking place.” Noting that Dr. Burstein had no direct knowledge of Page’s mental state on the day of the homicide, the court stated that it was “pure speculation to narrow it down to a particular date, and especially in light of the fact that there is no testimony, or there’s no information in front of me, that there is any behavioral, visual, auditory, any of the behaviors that we associate with that kind of—of having a psychotic break. There’s nothing there.” The court excluded Dr. Burstein’s testimony of Page’s mental condition on the day in question, but did allow him to testify about Page’s mental illness, the nature of his illness, psychotic episodes, and behavior after the homicide for purposes of the “reckless indifference” issue.
Prior to Dr. Burstein’s testimony, the trial court instructed counsel and Dr. Burstein regarding the limits of his testimony, and read a limiting instruction to the jury that was consistent with its ruling on the motions in limine.
In the course of discussing jury instructions, the court again indicated that Page’s mental state was not relevant for purposes of felony murder. Prior to closing argument, the court also directed counsel that “it is clear from the Cavitt case that Page’s state of mind, what he was thinking at the time, is not at issue, and is not something that can be argued.” The court then also referred to Penal Code section 29 as a basis for its view.
B. Analysis
1. Waiver
On appeal, defendant argues that his constitutional rights were violated because evidence of Page’s mental illness on the issue of felony murder should have been admitted and allowed to be considered by the jury, since it was relevant to whether or not Page had formed the specific intent to commit robbery, versus just theft, and to show there was not a “logical nexus” between the homicide and purported robbery, a required showing pursuant to Cavitt, supra, 33 Cal.4th 187. Although defendant argues otherwise, defendant has waived his appellate arguments regarding the court’s exclusion of Dr. Burstein’s testimony by his failure to raise them below in the motion in limine debate. (See, e.g., People v. Garceau (1993) 6 Cal.4th 140, 173 [waiver of Sixth Amendment appellate claim for failure to first raise the issue below]; Evid. Code, § 354.)
While defendant raises the waiver issue in his opening brief, the People do not argue the issue in their reply.
Defendant acknowledges that Evidence Code section 354, subdivision (a), prohibits a judgment from being reversed based on an erroneous exclusion of evidence unless the record reflects an adequate offer of proof. However, he argues that this rule does not apply because it would have been futile to make the requisite showing, given the trial court’s rulings on his motions for a continuance. (Evid. Code, § 354, subd. (b); Beneficial Etc. Ins. Co. v. Kurl Hitke & Co. (1956) 46 Cal.2d 517, 522.) He also argues that the parties’ stipulation to the court’s pre-trial rulings just before the court heard the subject motions in limine somehow constrained his ability to do so.
Defendant’s arguments are not persuasive. While defendant raised his “logical nexus” argument in the course of seeking a trial continuance, he did not raise his “theft versus robbery” argument. Moreover, he did not raise his appellate arguments in his motion in limine or in subsequent arguments. While the parties stipulated to the continued authority of the court’s pre-trial rulings, this stipulation was entered into after defendant filed his motion in limine, which did not raise them. While the trial court, in considering defendant’s continuance motion, indicated it did not view Page’s mental state as relevant to the charges based on its review of Cavitt, supra, 37 Cal.4th 187, it did so based on limited argument by counsel (who emphasized his theory that Page did not know who he was killing), and did not indicate that it would deny admission of the entire class of evidence related to Page’s mental state. Indeed, there was no proffer of evidence before the court at the time. Therefore, we reject defendant’s arguments that waiver of his appellate arguments did not occur here.
In its papers filed in support of its motion in limine to exclude the evidence of Page’s mental state, the People argued that the evidence was not relevant under Cavitt’s “logical nexus” approach. However, defendant does not indicate that he argued this issue regarding the competing motions in limine, and we have found no such argument in the record.
Defendant also argues that his “trial counsel adequately preserved the issues herein by arguing that Page’s mental illness was relevant to negate the logical nexus and temporal requirements of felony murder.” While defendant did make such an argument before the court when discussing jury instructions and closing argument, and contended that “[t]here was no plan to do a robbery . . . there was a plan to do a snatch and run” in the course of discussing jury instructions, he did not make these arguments regarding the motions in limine.
Defendant’s argument that a finding of waiver will somehow lead to an ineffective assistance of counsel determination lacks merit as well. In order to prevail on such a claim, defendant would need to show that his counsel’s “ ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms,’ ” and that he was prejudiced by this defective performance. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Defendant is unable to do so. The trial court acted within its discretion to exclude Dr. Burstein’s testimony for lack of foundation, and the evidence indicated the parties planned to participate in a robbery. Regarding defendant’s “logical nexus” argument, the court properly rejected this argument in considering his motion to continue the trial, relying on Cavitt, supra, 33 Cal.4th 187. In short, defendant’s counsel’s performance was not defective. Therefore, defendant did not receive ineffective assistance of counsel.
2. The Court Did Not Abuse Its Discretion
Even if defendant had not waived his appellate arguments, the court acted within its discretion when it excluded the evidence in dispute.
“Trial courts have wide discretion in determining the relevancy of evidence.” (People v. Vargas (2001) 91 Cal.App.4th 506, 545.) “ ‘Broadly speaking, an appellate court reviews a ruling by a trial court as to the admissibility of evidence for abuse of discretion.’ [Citation.] This standard of review applies to a trial court’s determination of the relevance of evidence, as well as to whether the evidence’s probative value is substantially outweighed by its prejudicial effect. [Citations.] The trial court’s ‘discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered.’ ” (People v. ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640.)
Defendant was convicted under the felony-murder rule, which applies when a person is killed in the commission of one of the felonies listed in Penal Code section 189, such as robbery. Liability for first degree murder “extends to all persons ‘jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the crime of robbery’ [citation] ‘when one of them kills while acting in furtherance of the common design.’ ” (People v. Pulido (1997) 15 Cal.4th 713, 716.)
Penal Code section 189 states in relevant part, “[a]ll murder which . . . is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Sections 206, 286, 288, 288a, or 289 . . . is murder of the first degree.”
a. Lack of Foundation
Defendant argues that the trial court’s analysis went to the weight of Dr. Burstein’s testimony, and not its admissibility. This is not correct. The principal basis for the trial court’s exclusion of the disputed evidence upon the conclusion of the Evidence Code section 402 hearing was the lack of sufficient foundation regarding Page’s mental state on the day of the killing. The court acted within its discretion in making this determination because Dr. Burstein’s opinion that Page killed McNutt while in a psychotic state was based on speculation. This included speculation about the medication Page was or was not taking in the period before the day in question, and about the cause of Page’s stabbing McNutt, given Dr. Burstein’s own acknowledgment that there was no evidence that Page acted in any agitated or irrational way on the day of the killing, the lack of evidence that Page behaved in any unusual manner in the days before the killing, Dr. Burstein’s acknowledgment that he had seen many murder cases in which the killers intended to kill the victim by “stabbing one, two, or three times,” Dr. Burstein’s acknowledgment that Page knew he was stabbing the victim of the robbery, and counsels’ acknowledgment that Page’s purported previous attack of his grandmother occurred about five months before the stabbing, and not in the days before it.
The evidence was that McNutt died of eight stab wounds to the chest and abdomen.
Defendant also argues that in holding an Evidence Code section 402 hearing, the court somehow admitted the evidence and, in admitting the evidence, the trial court impliedly found that Page was off his medication, became violent, and committed the murder. Defendant, relies on Evidence Code section 402, subdivision (c), which merely states, “A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.” We fail to see how this subdivision supports defendant’s argument.
Defendant also argues that the trial court improperly excluded Dr. Burstein’s testimony because of what the court considered to be Dr. Burstein’s “personal premise” that Page’s act was “crazy,” although the court acknowledged this to be a jury question. This is incorrect, as the record shows the court relied principally on lack of foundation for its ruling.
In short, defendant’s appellate arguments fail because the court did not abuse its discretion to exclude the evidence at issue on foundation grounds.
b. The Evidence Was Not Relevant
Defendant argues on appeal that Page’s mental state at the time he stabbed McNutt, as indicated in Dr. Burstein’s testimony, was relevant to show that Page never agreed to be “jointly engaged” in a robbery, but agreed only to participate in a “theft” before he killed McNutt in a psychotic state, placing defendant outside the felony-murder rule because theft is not one of those crimes enumerated in the relevant statute, Penal Code section 189. Even if this issue had been argued to the trial court below regarding the proffered evidence, it would have failed.
As we have already indicated, defendant argued that the crime was not a robbery in discussing jury instructions, although even then he did not raise the issue he raises on appeal regarding Page’s specific intent to commit theft rather than robbery.
Defense counsel repeatedly acknowledged the crime involved was a “robbery” in the course of arguing the motions in limine, and with good reason. Dr. Burstein indicated repeatedly in his own testimony that Page acknowledged in correspondence that he had intended to participate in a “robbery.”
Furthermore, although not before the court in the motion in limine hearing, defendant’s interview with the police was available at the time of the hearing in the event defendant had made the arguments below that he makes on appeal, since the court denied the motion in limine to exclude defendant’s confession before considering Dr. Burstein’s testimony. In his police interview, defendant made clear the plan was to rob McNutt. He repeatedly indicated that the plan was to “rough up” McNutt and, while he also indicated that he was to grab the marijuana from McNutt and run, he did not say anything which contradicted this repeated characterization of the plan, contrary to his contention on appeal. Indeed, after describing the “grab and run” plan, defendant answered affirmatively when asked if he had previously stated the plan was to “rough up” McNutt, and answered in the negative when the detective said, “[b]ut then the plan, you tell me that the plan was to do a grab and run.”
The trial court likely would have found defendant’s statement to the police that the plan was to “rough up” McNutt established the crime of robbery, because the court so stated in the course of rejecting defendant’s arguments about certain jury instructions.
Defendant also made several other statements in his interview that strongly indicated a plan to rob McNutt if necessary. When asked about the stabbing, defendant stated that he “didn’t know McNutt was gonna be hurt that bad.” (Italics added.) At another point, he indicated that he and Page planned to approach McNutt and, while Page and McNutt talked, he would grab the marijuana and run, until Page was able to pick him up in his car; the only reasonable inference of such a scenario was that Page might need to “rough up” McNutt in order to get away. Defendant also made clear that he had intended to threaten McNutt; when asked if he had planned to “cock” McNutt, he denied it, saying instead that “I was gonna basically do what I was gonna do. I was gonna take it all and just tell him to get out or I’m gonna hurt you, you know, rough—you know, we didn’t have no weapons, nothing, so that’s all we were left with, you know.” He told police that the plan’s initiators “brought [McNutt] to get jacked, you know”; tellingly referring to McNutt, not the marijuana, being “jacked,” another indication of a planned robbery. Confirming the intention to do what was necessary, near the end of the interview, defendant, in discussing why he hit McNutt, indicated that the plan was for him to do what was necessary to steal the marijuana: “They told me, you have to get, you know, you have to get this quarter. I’m thinking I got to get it somehow, you know.” (Italics added.)
A definition of “jack” when used in this context further supports that the plan was to rob McNutt; it is “a holdup or mugging, esp. if violent,” so that a “jack move” is “an aggressive move to rob or assault.” (Random House Historical Dictionary of American Slang, vol. 2 (1997) p. 235.)
In addition, the facts of the crime as described by defendant to police supported only one conclusion: that the plan included the possibility of using force or fear to steal the marijuana from McNutt. When McNutt suggested the drug transaction occur on a roadside, and then that it occur inside Page’s van, rather than in a park as defendant may have first contemplated, defendant and Page readily agreed to these changes, as evidenced by defendant’s description of their conduct. It is unreasonable—indeed, we think it is inconceivable—to believe that each of them did not intend to use force or fear to steal the marijuana from McNutt under these circumstances if it was required, to the extent that he had not contemplated this possibility already. It was obvious, as indicated by defendant’s thought that he might have to hit McNutt in the van, that force or fear might be necessary.
For this same reason, and because of Cedeno’s own assent to the transaction occurring inside the van, we find nothing inconsistent about Cedeno’s trial testimony, despite his statements that “no violence” was intended and that he thought defendant would be able to run with the marijuana from inside the van. Furthermore, the evidence presented at trial plainly indicated Page acted in concert with defendant to rob McNutt, since his encounter with McNutt occurred upon defendant using force against McNutt in an effort to steal the marijuana. Thus, to the extent defendant argues that the trial court improperly kept evidence of Page’s mental illness from the jury based on its limitations on counsel’s closing argument and its determinations regarding jury instructions, which occurred after Cedeno testified, these arguments lack merit for the same foundational and relevance reasons as stated herein. However, defendant did not waive his “logical nexus” argument regarding these matters, having raised it sufficiently to the court in discussing closing argument and jury instructions.
Based on defendant’s numerous references to a plan to use either force or threat to steal the marijuana from McNutt, and his and Page’s ready agreement to conduct the transaction in the van, only one conclusion could be reached: that they planned to rob McNutt, if necessary, even if they hoped to avoid using violence against him. Therefore, the trial court would have been within its discretion to exclude Dr. Burstein’s testimony and keep evidence of Page’s mental illness from the jury for purposes of the felony-murder rule on relevance grounds because there was no legitimate factual dispute that Page had formed the specific intent to rob McNutt before, as defendant described it to police, Page “snapped” and stabbed McNutt. Page’s purported mental illness was not relevant because it could not negate “the existence of objective facts that connect the act resulting in death to the felony the nonkiller committed or attempted to commit.” (Cavitt, supra, 33 Cal.4th at p. 205.)
As for defendant’s “logical nexus” argument, the trial court in the course of considering defendant’s motion for a continuance, correctly found that evidence of Page’s mental state was not relevant pursuant to Cavitt, supra, 33 Cal.4th 187. Defendant Cavitt, his girlfriend, and a friend conspired to rob the girlfriend’s stepmother. (Id. at p. 194.) The girlfriend let Cavitt and the friend into the house, where the three threw a sheet over her stepmother’s head, gagged her, and bound her wrists and feet. (Ibid.) Cavitt and the friend also bound the girlfriend to make it look as if she were a victim, and left. (Ibid.) There was evidence that the stepmother was alive but having trouble breathing when the two left, but by the time the girlfriend summoned help, she had died from asphyxiation. (Id. at pp. 194-195.) Cavitt and the friend argued at trial that they were not guilty of felony murder because the girlfriend had killed her stepmother as the result of a personal animus unrelated to the robbery after they left. (Id. at p. 195.)
Our Supreme Court rejected this defense, clarifying the causal and temporal elements of the felony-murder rule in doing so. The court explained that “the felony-murder rule does not apply to nonkillers where the act resulting in death is completely unrelated to the underlying felony other than occurring at the same time and place. Under California law, there must be a logical nexus—i.e., more than mere coincidence of time and place—between the felony and the act resulting in death before the felony-murder rule may be applied to a nonkiller. Evidence of the killing facilitating or aiding the underlying felony is relevant but is not essential.” (Cavitt, supra, 33 Cal.4th at p. 196.) Furthermore, “the requisite temporal relationship between the felony and the homicidal act exists even if nonkiller is not physically present at the time of the homicide, as long as the felony that the nonkiller committed or attempted to commit and the homicidal act are part of one continuous transaction.” (Ibid.)
The Supreme Court held that the girlfriend’s personal animus against her stepmother did not relieve her accomplices of liability under the felony-murder rule because, even if girlfriend had killed her stepmother for reasons unrelated to the robbery, there remained a logical nexus connecting the stepmother to the burglary. (Cavitt, supra, 33 Cal.4th at pp. 204-205.) The court explained: “As part of those felonies, [the stepmother] was covered in a sheet, beaten, hog-tied with rope and tape, and left facedown on the bed. Her breathing was labored at the time defendants left. These acts either asphyxiated [the stepmother] . . . or left her unable to resist [the girlfriend’s] murderous impulses. Thus, on this record, one could not say that the homicide was completely unrelated, other than the mere coincidence of time and place, to the burglary-robbery.” (Cavitt, supra, 33 Cal.4th at p. 204, fn. omitted.)
The court also stated: “Liability for felony murder does not depend on an examination of ‘the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental . . . . Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration . . . .’ [Citation.] ‘The felony-murder rule generally acts as a substitute for the mental state ordinarily required for the offense of murder.’ [Citation.] Accordingly, a nonkiller’s liability for felony murder does not depend on the killer’s subjective motivation but on the existence of objective facts that connect the act resulting in death to the felony the nonkiller committed or attempted to commit.” (Cavitt, supra, 33 Cal.4th at p. 205.)
The court expressly rejected the argument that killings that are the “fresh and independent product” of the killer’s mind are outside the felony-murder rule. (Cavitt, supra, 33 Cal.4th at p. 205, fn. 6.) “[T]he felony-murder rule renders it unnecessary to examine the individual state of mind of each person causing an unlawful killing.” (Ibid.; see also People v. Dillon (1983) 34 Cal.3d 441, 477 [“first degree felony murder . . . includes . . . a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident; it embraces . . . acts committed . . . under the dominion of mental illness . . ., and it condemns alike consequences that are highly probably, conceivably possible, or wholly unforeseeable”].)
Even if Page stabbed McNutt in a psychotic state, all of the evidence indicated there was a logical nexus between the homicide and the robbery, given the parties’ intentions, and that the stabbing occurred immediately upon defendant trying to take the marijuana from McNutt and hitting him. There is no basis for defendant’s argument that “[t]he trial court’s error lies in its failure to distinguish between the sufficiency of evidence and the relevancy of evidence, (bold omitted), and no evidence that the robbery itself “was a separate transaction that had terminated once [defendant] had physical custody and control of the marijuana in the van.” The court did not “supplant the jury’s province,” as defendant argues. Page’s mental illness was not relevant for the purposes of the felony-murder rule.
We take into account not only what we have already discussed about the parties intentions, but our discussion in part 3 directly below.
3. The Specific Intent Required
In addition, as the People point out, assuming for the sake of argument that a killer and accomplice must share a specific intent to commit the underlying felony for the felony-murder rule to apply to the accomplice, defendant’s argument that Page’s mental state was relevant to Page’s requisite mental intent to commit robbery fails. “For felony murder in the commission of a robbery or of a burglary in which entry is made for the purpose of theft, the only specific intent that the prosecution must prove is the specific intent to steal the victim’s property, which includes a specific intent to permanently deprive the victim of the property. [Citation.] A defendant who has this specific intent has the only specific intent required for liability under the felony-murder rule.” (People v. Pollock (2004) 32 Cal.4th 1153, 1175 (Pollock), italics added, citing People v. Koontz (2002) 27 Cal.4th 1041, 1080 [evidence of intent to steal sufficient for robbery felony murder].) To the extent that defendant is correct that he and Page needed to each have the specific intent to commit the underlying felony, that requirement was satisfied because each plainly intended to steal the marijuana from McNutt.
This is a dubious proposition in light of our Supreme Court’s admonition in Cavitt that “[l]iability for felony murder does not depend on an examination of ‘the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental . . . . Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration . . . .’ ” (Cavitt, supra, 33 Cal.4th at p. 205.)
Defendant implicitly concedes this specific intent requirement by arguing that Penal Code section 20, which requires that there be a concurrence between intent and act, requires that Page’s attack on McNutt occur for reasons related to the robbery regardless of intent. He also quotes discussion in Pollock regarding jury instructions stating that “to be guilty of felony murder in the commission of robbery or burglary the defendant must form the intent to steal before or during rather than after the application of force to the victim, and that the defendant must apply the force for the purpose of accomplishing the taking.” (Pollock, supra, 32 Cal.4th at p. 1176.) Defendant’s view is not the law, as indicated by our Supreme Court’s “logical nexus” discussion in Cavitt, supra, 33 Cal.4th 187. Defendant’s theft versus robbery argument fails for this reason alone.
Penal Code section 20 states: “In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.”
4. Defendant’s Penal Code section 29 Argument
Defendant makes extensive arguments that the trial court erred in barring evidence of Page’s mental illness for the purposes of the felony murder charge pursuant to Penal Code section 29, including in its denial of defendant’s motion for a new trial. These arguments are without merit.
Penal Code section 29 states: “In the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.”
Defendant cites to the court’s reference to Penal Code section 29 in considering Dr. Burstein’s proffered testimony, but we have already discussed the trial court’s exclusion of this evidence after the Evidence Code section 402 hearing on foundational grounds. While defendant also cites to the trial court’s statements to counsel during trial about the limits on Dr. Burstein’s trial testimony, the court’s statements did not refer directly to Penal Code section 29, and were consistent with its pre-trial rulings. The court’s subsequent limiting instruction to the jury just before Dr. Burstein testified was similarly consistent. Defendant also refers to the trial court’s reference to Penal Code section 29 when it discussed the limits on closing argument with counsel regarding Page’s mental state. While the court referred to Penal Code section 29 in the course of its discussion, it stated “it cannot be argued what Page’s state of mind was, actually was, because that clearly is not allowed, not only by the Cavitt case, but by Penal Code section 29, in my opinion. (Italics added.) The court correctly relied on Cavitt, supra, 33 Cal.4th 187. Because it based all of its rulings and statements on other independent, meritorious grounds, we do not need to address defendant’s Penal Code section 29 arguments further.
II. Jury Instructions
Defendant argues that the trial court made several errors in its instructions to the jury on the law of felony murder. These arguments are without merit.
A. The Trial Court’s Special Instruction
The trial court gave the following instruction over defendant’s objection: “A nonkiller’s liability for felony murder does not depend on the killer’s subjective motivation but on the existence of objective fact that connects the act resulting in death to the felony the nonkiller committed.”
Defendant acknowledges that this instruction was taken verbatim from a portion of Cavitt, supra, 33 Cal.4th at page 205, but argues that it is improper because it relates “only to the sufficiency of the evidence to support felony murder.” He argues that the instruction constituted reversible error because it violated his constitutional right to have the jury determine every material issue, since it removed from the jury’s consideration the issue of Page’s subjective motivation, which “was relevant to negate the subjective intent for the underlying felony.” This argument lacks merit. As we have already discussed, Cavitt relies on a “logical nexus” analysis, and a killer’s state of mind is not relevant to an accomplice’s liability for felony murder. (Id. at p. 205.) Furthermore, defendant’s appellate arguments regarding Page’s subjective intent to commit theft rather than robbery lack merit.
Defendant argues that the trial court’s special instruction was in error because it cannot be distinguished from a trial court’s answer to a jury question discussed in People v. Sakarias (2000) 22 Cal.4th 596, 623-624 (Sakarias). We disagree because the trial court did not instruct the jury to find any facts connecting the act resulting in death to the underlying felony committed by the nonkiller, while in Sakarias, the trial court specifically answered the jury’s question by telling it that certain facts, if found, constituted “one continuous transaction.” (Id. at p. 622.) Therefore, the case is inapposite.
B. The Single Continuous Transaction Doctrine
Defendant next argues that the trial court erred when it instructed the jury on the “escape rule,” pursuant to CALJIC No. 8.21.1, as follows:
“For the purposes of determining whether an unlawful killing has occurred during the commission or attempted commission of a robbery, the commission of the crime of robbery is not confined to a fixed place or a limited period of time.
“A robbery is still in progress after the original taking of physical possession of the stolen property while the perpetrator is in possession of the stolen property and fleeing in an attempt to escape. Likewise it is still in progress so long as immediate pursuers are attempting to capture the perpetrator or to regain the stolen property.
“A robbery is complete when the perpetrator has eluded any pursuers, has reached the place of temporary safety, and is in unchallenged possession of the stolen property after having effected an escape with the property.”
Defendant argues that the trial court should have instructed the jury on the “continuous transaction rule” instead, pursuant to CALCRIM No. 549. This argument also lacks merit based on Cavitt. Our Supreme Court recognized that “we are presented with two related, but distinct doctrines: the continuous-transaction doctrine and the escape rule. The ‘escape rule’ defines the duration of the underlying felony, in the context of certain ancillary consequences of the felony [citation], by deeming the felony to continue until the felon has reached a place of temporary safety. [Citation.] The continuous-transaction doctrine, on the other hand, defines the duration of felony-murder liability, which may extend beyond the termination of the felony itself, provided that the felony and the act resulting in death constitute one continuous transaction.” (Cavitt, supra, 33 Cal.4th at p. 208.) In the present case, the trial court had no reason to instruct the jury on the continuous transaction rule because that rule only extends felony-murder liability beyond the conclusion of the underlying felony, of which there was no evidence whatsoever.
Defendant argues that this analysis is incorrect, citing Justice Werdegar’s concurrence in Cavitt, supra, 33 Cal.4th 187, in which she stated her concern that the CALJIC instructions might be insufficient in the event of “any momentary diversion from the felonious enterprise[.]” (Cavitt, at p. 211.) Justice Werdegar’s concurrence, however, was not necessary to the majority opinion. Regardless, there was no evidence presented of any “momentary diversion,” making her view inapposite.
Defendant also contends that the court’s instruction, “[c]ombined with the People’s special instruction and the limiting instruction regarding Page’s mental state . . . removed the temporal requirement from the jury’s consideration in violation of [Khan’s] constitutional rights.” Defendant merely cites to Sakarias, supra, 22 Cal.4th at pages 623-624, without further explanation. We find the argument unpersuasive. Defendant’s arguments do not establish that the court failed to instruct the jury regarding the appropriate temporal considerations to consider, consistent with the “logical nexus” analysis outlined in Cavitt, supra, 33 Cal.4th 187.
Furthermore, even if the trial court had erred, there was no resulting prejudice under either federal or state standards given the evidence before the jury, which provided no support whatsoever for defendant’s factual theory. (Chapman v. California (1967) 386 U.S. 18, 24 [federal]; People v. Watson (1956) 46 Cal.2d 818, 836 [state].)
We reject defendant’s argument of structural error, to the extent he may argue it applies to a purported error here. (See, e.g., Sakarias, supra, 22 Cal.4th at pp. 624-625.)
C. Sua Sponte Instructions
Defendant next argues that the trial court failed to provide sua sponte certain instructions to the jury. This too lacks merit.
Defendant argues that the trial court failed to instruct the jury “regarding the killer’s specific intent to commit the underlying felony,” and regarding the requirement that “the killer’s specific intent to commit the underlying felony must exist prior to or during the homicidal act.” We do not determine the merits of these arguments because any error was unquestionably harmless. Page indisputably planned to participate in a robbery; and at the very least, he planned to help steal marijuana from McNutt. (See Pollock, supra, 32 Cal.4th at p. 1175.) Therefore, any purported instructional error was harmless under federal or state standards for error. (Chapman v. California, supra, 386 U.S. 18, 24 [federal]; People v. Watson, supra, 46 Cal.2d 818, 836 [state].)
We reject defendant’s argument of structural error here as well, as stated in footnote 14, ante.
Defendant also argues the trial court should have instructed sua sponte the need to find a concurrence of the killer’s intent and act. The “logical nexus” test as stated in Cavitt, supra, 33 Cal.4th 187, made such an instruction unnecessary.
D. “Jointly Engaged” Instruction
Defendant next argues that the “trial court should have instructed the jury that felony murder requires the accomplices to be ‘jointly engaged’ in the felony, even though defense trial counsel agreed to its exclusion due to neglect or mistake.” This argument also lacks merit.
The trial court provided the jury with CALJIC No. 8.27, but excluded a paragraph from the instruction which, according to defendant, stated: “In order to be guilty of murder, as an aider and abettor to a felony murder, the accused and the killer must have been jointly engaged in the commission of the (felony) at the time the fatal [blow was struck] [wound was inflicted]. However, an aider and abettor may still be jointly responsible for the commission of the underlying (felony) (felonies) based upon other principles of law which will be given to you.”
Both counsel for the defendant and for the People acknowledged that the paragraph, as stated in the “use note” for the instruction, “should only be given if a defendant contends he or she did not aid and abet until after the final blow was stricken,” and agreed that it should not be provided to the jury.
We agree with the People’s assertion that defendant’s claim is barred by the doctrine of invited error, which provides that a defendant is precluded “from gaining reversal on appeal because of . . . an error made by the trial court at the defendant’s behest. [Citations.] ‘For the doctrine to apply, “it must be clear from the record that defense counsel made an express objection to the relevant instructions. In addition, because important rights of the accused are at stake, it must also be clear that counsel acted for tactical reasons and not out of ignorance or mistake.” ’ ” (People v. Duncan (1991) 53 Cal.3d 955, 969.) Here, defense counsel made no mistake; instead, he made the correct tactical decision to request that the court forego this instruction because there was no evidence to support it. As we have discussed, the evidence presented at trial clearly established that defendant and Page were jointly engaged in a plan to rob and, at the very least, to steal marijuana from McNutt prior to the stabbing. For this same reason, defendant’s claim that any forfeiture of issues on appeal is due to ineffective assistance of counsel also fails.
Given our conclusions herein, we do not need to further address the issues raised between the parties regarding whether purported errors in excluding evidence or instructing the jury were harmless or prejudicial, or warrant reversal per se because of the nature of purported constitutional violations.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.