Opinion
D051420
10-29-2008
THE PEOPLE, Plaintiff and Respondent, v. EUSTRACIO CANEDO NACILLA, JR., Defendant and Appellant.
Not to be Published
A jury convicted Eustracio Canedo Nacilla, Jr., of second degree murder. (Pen. Code, § 187, subd. (a).) The jury also found that Nacilla personally used a deadly weapon in the commission of the crime. (§ 12022, subd. (b)(1).) The trial court sentenced Nacilla to 16 years to life in state prison.
All statutory references are to the Penal Code unless otherwise indicated.
Nacilla appeals, contending that his conviction must be reversed because the trial courts instructions regarding the jurys consideration of expert witness testimony was erroneous. Nacilla argues the error was prejudicial because the trial courts instruction could have caused the jury to disregard evidence regarding his mental illness that was crucial to the defense case. As discussed below, we find this contention to be without merit and affirm.
FACTS
On January 23, 2006, Nacillas brother, Arven Nacilla, walked up the path to his front door. A neighbor, J. Terry Miller, saw Arven, jumped over a short picket fence bordering the property, and the two men shook hands. Miller and Arven spoke briefly, and Miller jumped back over the fence into his own yard as Arven continued toward his front door.
We refer to Nacillas brother by his first name throughout the opinion to avoid confusion. No disrespect is intended.
Just before Arven reached the door, Nacilla came out of Arvens home. Nacilla had a knife in his hand. Nacilla hopped the fence into Millers yard. Miller tried to run, but was cornered. Miller then threw a punch at Nacilla and Nacilla stabbed him with the knife in his left side. Miller then returned to his house where he died from blood loss due to the stabbing. (The medical examiner explained that Nacilla cut Millers left axillary artery, causing massive blood loss.) Nacilla jumped back over the fence and returned to his house, waiting there until police arrived.
DISCUSSION
On appeal, Nacilla challenges the trial courts instruction to the jury that they should consider third party statements made to defense experts solely for the purpose of evaluating the experts testimony, not for the truth of the statements. Nacilla asserts the instruction should not have been given because many of the statements were either independently testified to by nonexpert witnesses or were contained in documentary evidence which itself was admissible under established hearsay exception rules. According to Nacilla, the error prevented jurors from considering evidence which would have substantiated his mental illness and supported his defense that his illness, not criminal intent, caused him to stab Miller. For the reasons discussed below, we reject the challenge and affirm the judgment.
The facts of the case were largely undisputed. Nacillas only defense at trial was that the stabbing resulted from his mental illness as opposed to any conscious intent to kill and, consequently, Nacilla did not possess the requisite mental state for murder. (See § 187, subd. (a) [defining murder as an unlawful killing of a human being or fetus "with malice aforethought"]; People v. Saille (1991) 54 Cal.3d 1103, 1117 [recognizing as a defense to murder that "because of his mental illness" a defendant "did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought)"].) To support this defense, Nacilla presented the testimony of a psychiatrist, Dr. Clark Smith. Smith summarized Nacillas history of mental health problems and testified that Nacilla suffered from "a severe psychiatric disorder, chronic paranoid schizophrenia." Smith emphasized that Nacillas illness appeared to be "long-standing," and that Nacilla was "actively psychotic" at the time of the murder and "severely ill." Smith also testified that Nacillas explanations for past incidents of violence, including a reference to "hearing voices," were consistent with schizophrenia.
In developing his opinions, Dr. Smith relied on his personal examination of Nacilla, a tape of Nacillas poststabbing interview with police, Nacillas medical records, and documentary evidence (primarily police reports) disclosing Nacillas history of violent, irrational behavior. Among the prior instances of violence Dr. Smith considered were Nacillas attack on Arven while Arven was sleeping, causing the loss of sight in Arvens left eye; an assault on his former boss; the kicking of Cory Kleinsmith (one of Millers roommates) through an open car door without apparent provocation; Nacillas threatening of his mother and grandmother with a knife; and a battery against his father and a police officer. Smith discussed these instances in his testimony.
Generally, testimony relating the observations of third parties constitutes hearsay and is inadmissible in court. This rule is relaxed in the context of expert testimony. Experts are permitted to rely on certain types of hearsay evidence in forming an opinion and can recount the information they relied on for the jury. (People v. Gardeley (1996) 14 Cal.4th 605, 618; Evid. Code, §§ 801, 802.) This otherwise inadmissible evidence is permitted solely to supply the grounds for the experts opinion, however, and cannot be considered by the jury for its substantive truth. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1295 ["An expert may base his opinion on reliable hearsay, and may disclose such information to explain the reasons for his or her opinion, as long as the information is not considered for its truth"].) Consequently, when an experts testimony includes reference to otherwise inadmissible evidence, a limiting instruction is appropriately given to the jury. (Id. at pp. 1295-1296.)
The trial court in the instant case, without objection, gave the standard limiting instruction, CALCRIM No. 360, with slight modifications. The instruction, which was directed to the testimony of both defense experts, Dr. Smith and Dr. Dellis, stated:
Nacillas counsel did not object to the instructions regarding expert testimony or request alternate language.
Dean Delis, a psychologist, testified that Nacilla did not appear to be malingering and had a low IQ.
"Dr. Smith and Dr. Dellis testified that in reaching their conclusions as expert witnesses, they considered statement[s] made by Defendant Eustracio Nacilla, and other witnesses. You may consider those statement[s] only to evaluate the experts opinion. Do not consider those statement[s] as proof that the information contained in the statement[s] is true." (See CALCRIM No. 360.)
The trial court also instructed the jury, more informally, during Dr. Smiths testimony, without objection, as follows:
"Ladies and gentlemen, what you are seeing now and the doctors testifying to is some reports and statements that are made by others that are not in court. For instance, youre seeing reports of Palomar Hospital or some statements made by the defendant. Those are technically hearsay statements and theyre not offered for the truth of the matter asserted, rather theyre offered as a basis for you to evaluate an experts opinion, and Ill instruct you later on how to deal with hearsay statements."
Except as discussed below, we need not consider the Attorney Generals contention that Nacilla forfeited his appellate challenge by failing to object in the trial court, because we conclude that the challenge fails on its merits.
On appeal, Nacilla contends that the trial courts instruction was erroneous because it improperly undermined a central component of the defense case, namely that Nacillas history of violent behavior and bizarre explanations for that behavior supported a conclusion that the stabbing resulted from Nacillas preexisting mental illness rather than from any criminal intent. Nacilla argues reversal is warranted because the instruction, if strictly followed, required the jury to discount not only the statements considered by the expert witnesses, but also any "statement[s] made by Defendant Eustracio Nacilla, and other witnesses" directly to the jury (through live testimony of nonexpert witnesses or via a videotape of Nacillas poststabbing interview with police). We find this contention to be without merit.
A challenge to the trial courts instruction on the ground that it could have been interpreted by the jury in a manner that is contrary to the law warrants reversal only if "there is a reasonable likelihood that the jury misapplied or misconstrued the instruction." (People v. Crew (2003) 31 Cal.4th 822, 848; People v. Clair (1992) 2 Cal.4th 629, 663.) Here there is no reasonable likelihood that the jury misapplied or misconstrued the instruction and, consequently, reversal is not warranted.
The challenged instruction was not likely to be taken by the jury to apply to any evidence apart from that provided via expert testimony. The instruction was given in the context of other instructions regarding the testimony of expert witnesses, and was expressly linked to the testimony of the two defense experts, Dr. Smith and Dr. Dellis. The instruction states that those experts "testified that in reaching their conclusions as expert witnesses, they considered statement[s] made by Defendant Eustracio Nacilla, and other witnesses." The court then instructed the jury not to consider those statements for their substantive truth.
Thus, it is clear from the language and context of the challenged instruction that the court was addressing the jurys consideration of witness statements that were recounted by Drs. Smith and Dellis. The instruction contains no suggestion that the jury should also apply the instruction to evidence that was presented through non-expert witnesses, such as Nacillas statements in the taped interview with police, or Arvens and Kleinsmiths live trial testimony. In fact, such an application of the instruction would have made little sense. The jury was presented with Arven and Kleinsmiths live testimony prior to any expert testimony, and the trial court did not say anything during that non-expert testimony or during the presentation of Nacillas taped police interview that would have suggested to the jury that this evidence (or portions of it) was to be considered solely for the purpose of evaluating the opinion of the defense experts.
Our conclusion that the jury could not plausibly have misconstrued the challenged instruction to apply to non-expert evidence regarding prior instances of violent conduct is buttressed by the fact that neither party disputed that these violent events occurred. In the elicitation of testimony, opening statement and closing argument, the prosecutor and defense counsel accepted the fact that the prior violent incidents had occurred, while drawing different conclusions as to what they signified — mental illness or conscious wrongdoing. Indeed, the record indicates that during trial, defense counsel relied on an exhibit consisting of a "two-placard time line" to depict Nacillas history of irrational violence. The time line was admitted into evidence without objection. Given, then, that both the defense and prosecution premised their arguments on the fact that the prior instances of violence had occurred, it is unlikely the jury would have taken the trial courts instructions regarding expert testimony to preclude the jurors from accepting that same premise.
Nacilla also argues that the trial court should have specified in its instructions the items of evidence relied on by the experts that were and were not admissible for their truth. As we conclude that the instruction was not erroneous as given, we cannot fault the trial court for failing to sua sponte take such action. (See People v. Lang (1989) 49 Cal.3d 991, 1024 ["A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language"].)
Nacilla also contends that the instruction was flawed even with respect to evidence that was only presented through expert testimony, highlighting hospital records documenting Nacillas treatment that were considered by the experts and admitted into evidence. Nacilla contends this evidence was erroneously encompassed by the challenged instruction because the evidence was admissible under a hearsay exception that permits a " `statement of the declarants then existing state of mind " unless " `the statement was made under circumstances such as to indicate its lack of trustworthiness. " (See Evid. Code, §§ 1250, 1252.) It is unclear, however, how this contention advances Nacillas instructional error argument. Nacilla did not argue in the trial court that statements regarding his state of mind were independently admissible under Evidence Code section 1250, and we cannot fault the trial court for failing to raise the contention sua sponte and then tailoring its instructions accordingly. (See Evid. Code, § 354, subd. (a) [reversal not warranted on ground that evidence was erroneously excluded unless "[t]he substance, purpose, and relevance of the excluded evidence was made known to the court"]; People v. Fauber (1992) 2 Cal.4th 792, 854 [holding that defendant was precluded from asserting for first time on appeal that statements were not hearsay because his counsel did not "specifically raise th[e] ground of admissibility" urged on appeal in the trial court].)
Further, it is not clear from the record that the trial court would have ruled that any of the statements obliquely referenced by Nacilla (Nacilla, in fact, fails to identify the specific statements he believes would have been admissible on this ground) were admissible under Evidence Code section 1250. With respect to some of the statements, there were multiple layers of hearsay at issue, and all of the statements would have been subject to the courts discretionary determination as to whether they were made under circumstances that indicated adequate trustworthiness under Evidence Code section 1252. (See People v. Escobar (2000) 82 Cal.App.4th 1085, 1103 [recognizing the trial courts broad discretion to determine whether evidence is admissible under a hearsay exception, such as " `the state of mind exception to the hearsay rule "].) Consequently, we cannot find any error in the trial courts instructions on the speculative ground that portions of the third party statements recounted by the experts (and thus subject to the instruction) might, in fact, have been independently admissible under Evidence Code section 1250 had that argument been advanced in the trial court.
In addition, Nacilla exaggerates the significance of the courts instruction with regard to the out-of-court statements regarding his state of mind. The statements concerning Nacillas state of mind were, in fact, admitted into evidence. Further, the jury was permitted to consider those statements in determining whether to credit the expert testimony that Nacillas conduct was most easily explained as a reaction to his severe mental illness, rather than by any criminal intent. The jury rejected this view of the evidence in its verdict. It seems highly formalistic and patently unconvincing to suggest that the jury would have changed its view of the evidence if only it had been instructed that it could consider the out-of-court statements regarding Nacillas state of mind for their truth. Stated another way, even if Nacillas counsel had suggested this ground of admissibility in the trial court, and the trial court had accepted it and altered the challenged instruction accordingly, it is not reasonably probable the ultimate verdict would have been any different. (See People v. Stankewitz (1990) 51 Cal.3d 72, 113 [recognizing that such a showing of prejudice is required to prevail on a claim of ineffective assistance of counsel].)
In sum, we do not believe there is any reasonable likelihood that the jury interpreted the trial courts instruction to mean anything other than what was clearly intended by the instruction — that third party statements recounted by the experts were admissible only for their bearing on the experts opinions. Understood in this manner, the instruction was perfectly proper in light of the evidence and arguments made in the trial court and reversal is not warranted.
DISPOSITION
Affirmed.
WE CONCUR:
HUFFMAN, Acting P. J.
MCDONALD, J.