Opinion
F083306
03-15-2023
THE PEOPLE, Plaintiff and Respondent, v. TODD DOUGLAS PATE, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, No. 13CM3538HTA Edward M. Lacy, Jr., Judge. (Retired Judge of the Stanislaus Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
A jury convicted defendant Todd Pate of one count of first degree murder (Pen. Code, §§ 187, subd. (a), 189, subd. (a)) and found true a special allegation that defendant personally used a knife in the commission of the crime (§ 12022, subd. (b)(1)). The trial court sentenced defendant to 25 years to life plus one year for the weapon enhancement. Defendant contends his conviction must be reversed due to a prejudicial instructional error regarding mental impairment evidence under a modified form of CALCRIM No. 3428. Finding no error, we affirm.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL BACKGROUND
On September 2, 2013, defendant was arrested after his wife Melanie was found stabbed to death and floating in the pool in the backyard of their home. Defendant was charged with murder with special-circumstances allegations. On August 8, 2016, an amended information alleged only murder without any special circumstances and alleged a weapon enhancement for personal use of a knife in the commission of the crime. The case was tried before a jury in August 2016, but ended in mistrial after the jury was unable to reach a verdict. Immediately after the verdict, defense counsel declared a conflict of interest, and counsel was relieved from further representation. Defendant was ultimately appointed new counsel and the matter went to jury trial a second time in July 2021; the jury found defendant guilty of first degree murder and found true the weapon enhancement allegation.
I. Prosecution's Case
Defendant married his first wife Brenda in 1984; their daughter Megan was born about five years later, and they divorced around 1990. The divorce was amicable, and they shared custody of Megan with no issues. After defendant married his second wife Melanie, their first child was delivered stillborn, which had strongly affected both Melanie and defendant; subsequently, they had a son K.P. who was born sometime around 2001. Even though defendant and Brenda had both remarried, their families remained fairly close. Megan attended K.P.'s sporting events and maintained a relationship with defendant, and Brenda would talk to Melanie and defendant on the phone with occasional visits.
Defendant and Melanie lived in Hanford; defendant was an assistant manager for a food distribution company, where he worked for nearly two decades. K.P. played on baseball teams in which defendant and Melanie participated through coaching and administration, respectively, and spectating generally. Through K.P.'s baseball, Melanie in particular developed several friendships with other parents whose children were playing on the teams, including Karen and Laura. Melanie was also good friends with her next-door neighbor, Monica, who had children about the same age as K.P.
In early 2013, both Melanie and defendant told Brenda their marriage had begun to sour. In February 2013, defendant told Brenda he thought Melanie was cheating; he was checking her social media accounts and phone messages and would time her if she went to the store. He was concerned about the marriage and unhappy that it was ending. When Brenda saw him in February 2013 after this phone conversation, she thought he looked unwell and did not seem himself, but defendant assured her he was keeping things friendly with Melanie. Defendant also mentioned to friends and colleagues at work the marriage was failing, and he was expecting to be served with divorce papers.
Melanie discussed the faltering marriage with her friends Karen and Monica. Karen had noted in the summer of 2013, Melanie was doing a lot of things with K.P. without defendant. Melanie had changed her hair, was wearing more makeup, and Karen thought she seemed more active and confident; Melanie had also stopped wearing her wedding ring. She told Karen there were problems in the marriage, that she and defendant lived separate lives, and that they did not share a bedroom anymore. K.P. confirmed Melanie had been sleeping in his room for about a year before she died; she had told K.P. the bed in her room with defendant hurt her back. Karen knew Melanie was planning to divorce defendant, and Melanie had mentioned her attorney was requesting a lopsided custody split of 90/10 favoring Melanie. Melanie was concerned about the disproportionate request and was planning to discuss it with defendant. Similarly, Melanie told Monica she was planning to divorce defendant and that she was concerned how it would impact her ability to maintain the daycare business she ran out of their home; by the end of August 2013, Monica knew Melanie was planning to serve defendant with a divorce petition.
The weekend before Melanie was killed, defendant took K.P. to Megan's house for a visit. Megan had told defendant that she and her family were not going to be around that weekend, but defendant insisted on coming to her house anyway. Over the weekend, he and Megan had a brief visit where defendant told Megan he was not going to be there for Megan and her expected baby, which "freaked" Megan out, and she could not understand why he was acting as though the divorce was going to take him away from Megan and her family. Defendant and K.P. also played golf with Brenda's husband that weekend, and then the four of them, including Brenda, had dinner together. Defendant had brought his high school yearbook and they reminisced; Brenda thought defendant's demeanor was good, but she really did not know why he had come up to visit.
On Thursday, August 29, 2013, Monica, who lived next-door to Melanie, saw a truck parked on the street out front and saw a man exit the truck carrying papers. Monica surmised this was a process server who was delivering divorce papers to defendant. At that time, Monica saw defendant's truck down the street but noticed it made a U-turn and drove away, which she found odd.
The process server, Amos, confirmed he had been at defendant's home on Thursday, August 29, 2013, but was unable to serve him. Amos went back to the house the following morning to try again, but Melanie arrived home and they discussed a strategy to serve defendant. Amos returned that evening, Friday, August 30, 2013; defendant drove up to the house, dropped off K.P. in the driveway, and drove down the street to the mailbox. Amos drove his vehicle to intercept defendant at the mailbox and pulled up next to defendant's vehicle so their driver's side windows aligned. Defendant confirmed his identity and motioned to Amos with his fingers to give the papers over. Defendant was very nice and calm, and said nothing more than to give the papers to him.
Melanie told Karen by phone, however, that when defendant came into the house after being served he started screaming at Melanie and telling K.P. that K.P.'s mom was trying to divorce defendant, and defendant kept waving the papers in K.P.'s face. Melanie told Karen "he" took the papers and threw them in the pool, but Karen was not sure whether Melanie was referring to defendant or K.P. K.P. remembered that defendant had shown him the papers that weekend and that his parents had gotten into an argument; K.P. thought he threw the papers in the pool himself because he was mad.
Over the weekend, defendant's phone records showed a series of internet searches. One, which was erased on August 30, 2013, related to carbon monoxide poisoning; another search related to charcoal-burning suicide and jumping off a cliff. The phone revealed internet searches on Saturday afternoon for "ten ways to kill yourself quickly"; "'I don't know what to do, I am desperate'"; how to make simple poison at home; and a blog site was accessed related to deadly poisons at an aquarium store.
On Sunday morning, September 1, 2013, defendant's phone showed internet searches around 8:00 a.m. about how to blow up a house. Around 6:30 p.m. on Sunday evening, Melanie and K.P. went to Laura's house for a barbecue; K.P. was friends with Laura's son. Around 11:30 p.m., Melanie left the barbecue, and K.P. stayed to spend the night with his friends. Laura and Melanie never arranged a specific time K.P. would be picked up the next morning, but Laura knew Melanie was taking K.P. to a baseball game so Laura expected K.P. would be picked up around midmorning.
On Monday morning, September 2, 2013, defendant sent a text message to K.P. at 4:41 a.m. that said "[K.P.], I love you." That morning, defendant was supposed to be covering for a coworker, Doyel, who was sick. Doyel had expected defendant would go to the coast and cover Doyel's route on Monday morning. Had Doyel been in good health, he would have left for his route on the coast around 5:00 a.m. Doyel called defendant around 6:00 a.m. that morning to give him a head's-up about what to expect on the route, but defendant did not answer the call. Defendant did not return Doyel's call until around 9:30 a.m. and did not sound like himself: defendant sounded robotic, and his tone and responses seemed different and odd. Defendant told Doyel he had not left for the coast, which was concerning to Doyel because it was very out of character for defendant. Doyel told defendant not to worry about it, Doyel would call their supervisor Grice, and they would take care of the route. Doyel ended up managing his route remotely that day. Grice testified it was his understanding defendant was going to go to the coast that Monday, but he did not do so.
Around 11:50 a.m. that same morning, Monica, the next-door neighbor, and her boyfriend Paul pulled into their driveway having returned from a weekend away. When he and Monica pulled up to their house, Paul saw Melanie and defendant in their garage next door; Melanie was cleaning out her mother's car. When Paul and Monica parked their car and exited, they could hear elevated voices next door although they could not determine what was being said. Monica asked Paul to unload all the camping gear because she did not want to be outside. To Monica, defendant and Melanie appeared to be having an argument; she knew they were going through a divorce and did not want to listen to what was happening. Monica went inside the house and Paul proceeded to unload the vehicle. About 20 minutes after they arrived home, while dumping an ice chest outside Paul saw defendant was standing in defendant's garage and his face looked "pretty red." Paul went back inside and then left to drive to his own home about 10 or 15 minutes later.
Meanwhile, K.P. was expecting Melanie to pick him up at Laura's house around 8:00 a.m. on Monday morning, but instead he got a call sometime that morning from defendant who sounded as though he was out of breath. According to K.P., defendant said "I love you, don't believe anything anybody tells you"; and "I didn't do this." K.P. remembered being "super confused"; he hung up the phone and heard what happened to Melanie about an hour later.
A little before 1:00 p.m., defendant called 911. He said he had "just killed my wife. I need someone to come here." After being transferred to a different dispatcher, defendant said, "I need someone to come over here and try to pick me up." He said, "I just killed my wife"; and he explained "me and my wife had a fight." Defendant told the dispatcher "[s]he came at ... she came after me," he repeated, "My wife came after me. We had an argument. I defended myself. Came after me." He then said, "I need someone to come pick me up" and ended the call.
Law enforcement was dispatched to the house, and officer Steve Schmitz arrived on the scene within two minutes. Defendant answered the door and appeared to have been sweating and there was some blood on his legs, around his shin. Defendant was very calm and told Schmitz that Melanie was in the pool. Schmitz looked around and saw a blood smear from the front of the house area straight to the back sliding doors and into the backyard. Upon entering the backyard, Schmitz saw a woman floating in the deep end of the pool in a standing position with the crown of her head visible above the surface of the water. The water appeared completely calm. There was a knife in the pool. When the body was pulled from the water, officers saw what looked like stab wounds on the left side of Melanie's neck and a large laceration across the front of her throat.
Officer Chad Allen also responded to the home about five minutes after the dispatch. Allen made contact with defendant, who was sitting near the kitchen area. Defendant appeared calm with a "thousand yard [stare]"; he showed no real emotion and appeared to be in shock. Allen walked to the door leading to the backyard and saw what appeared like blood and smear marks or drag marks on the floor leading to the backyard. Once in the backyard, Allen saw more blood and smear marks and then saw a female body floating in the pool.
Officer James Adams also responded to the home around 1:00 p.m. As soon as Adams walked in the front door of the house, he saw defendant to his right and asked defendant to step outside with him. Defendant said he could not tell Adams what had happened, but said he had just "lost it." He appeared to Adams to be very stoic and looked like he was in shock. It was a very warm day and, concerned about defendant's shock-like demeanor coupled with the lack of shade, the heat of the day and the traumatic incident, Adams placed defendant in the back of his patrol car and turned on the air conditioning. Adams transported defendant to the police station about 15 minutes later.
A search warrant was issued for the home, and photographs were taken of the scene. On a step inside the pool, there was a ball of hair in the water and a knife lying on the step. On the kitchen counter, there were a couple of knives and a corkscrew, and there was a substance that looked like blood on two of the knives. There were bloody drag marks on the floor that led to the back door, and there was blood that went out the back door and to the side of the pool. In a small office area that had been built in one of the garage stalls, there was paperwork spread out that appeared to have been wet. There were small pieces of paper in a pool net. In the primary bedroom that also had a bathroom, there was what appeared to be blood in the shower area.
A subsequent autopsy revealed two distinct cuts on the right and left side of Melanie's neck that were discontinuous and signified two separate wounds. There was also bleeding in the space between the scalp and skull, which was possibly from something like hair pulling. There was no evidence of drowning; the water in the airway was minimal and there was no evidence of water in the lungs. The pathologist opined the cause of death was exsanguination that resulted within one to two minutes of sustaining the injuries.
Defendant was brought to the county jail, and a deputy noted defendant had scratches on his knees and some scratches on his arm. A few days later, the same deputy was asked to monitor a visit defendant was having with his brother in the area typically reserved for attorney meetings with inmates. He heard defendant asking his brother to go to his desk at his home where there would be letters in one of the drawers in the desk, and there were some in the backseat of his vehicle. Defendant asked his brother to give the letters to the addressees. He also said he was sorry and that Melanie had pushed him. Defendant told his brother that he told Melanie not to push him, and then "she said what she said and I did what I did." Defendant told his brother that everyone has a breaking point, and when Melanie said "that" to him, that was defendant's breaking point. He never elaborated on what Melanie had said because defendant's brother told him to be quiet.
A friend of Melanie's went to the house the day after Melanie's death to clean out a car. In the car, the friend found a packet of letters in envelopes with different names on them in the backseat of a car; she delivered the papers to law enforcement. The letters were farewell messages and addressed to defendant's siblings, his parents, K.P., Megan and Brenda; there was also a eulogy defendant had created for himself.
II. Defense Case
Defendant consulted with a divorce attorney in February 2013 and formally retained the attorney in July 2013. Defendant's niece testified she had lived with defendant and Melanie and had found it to be a loving home; defendant was not a violent person. Psychiatrist Bruce Terrell met with defendant in the jail on three separate occasions and evaluated him. On September 25, 2013, he observed defendant was severely depressed based on his facial animation, appearance, lack of core eye contact, and his effect was flat. He seemed to be out of touch with reality and had psychotic symptoms. He was wearing a jail-issued suicide smock, which indicated to Dr. Terrell the treatment team at the jail was very concerned defendant might kill himself.
Defendant told Dr. Terrell that he and his wife had not been getting along for some time, and he had started to feel depressed around January 2013. Defendant indicated he was experiencing auditory hallucinations and voices were telling him to kill himself. He also described visual hallucinations in the form of shadows that had been occurring for about three months prior to Melanie's death. He seemed to Dr. Terrell to be out of contact with reality because when asked about the charge against him, defendant said he thought his wife was still alive; he had heard her voice the day before. Defendant reported having no memory of killing Melanie, although he recalled putting his hands around her neck; his next memory was of being in the pool. A memory gap like this, Dr. Terrell explained, sometimes occurs if the unconscious mind becomes overwhelmed and certain memories will be repressed. Dr. Terrell diagnosed defendant with major depressive disorder single episode, severe psychotic features, mood concurrent.
Dr. Terrell noted defendant's experience of losing his first child with Melanie was an overwhelming and devastating experience for him and observed that some people had a pathological and abnormal reaction to a loss where they do not handle it well and become overwhelmed emotionally; this can also cause a person to become emotionally fragile when they experience something symbolically similar such as losing custody of a child. Dr. Terrell concluded defendant had started to get depressed in January 2013, which continued to worsen for about six months prior to the crime. Dr. Terrell also opined defendant was in a state of psychosis for at least two months before the crime.
Defendant testified in his own defense. He had been working at his current position for 18 years; he had met Melanie in 1990, and they had been married for 15 years. They lost their first child, and defendant had never really gotten over the loss. At the beginning of 2013, he and Melanie started having discussions about divorce, and defendant scheduled a meeting with a divorce lawyer. It was his understanding they were going to share everything equally, including custody.
One weekend in 2013, Melanie had taken K.P. out of town for a baseball tournament; defendant had stayed home to see how it would be without K.P. half the time. He did not get any sleep and when Brenda and Megan came to visit him that weekend, he probably looked depressed. Defendant confided in a few people about the potential divorce and arranged for places to stay if he moved out of the family home. He was still hoping things would get better.
Defendant struggled with increasing depression and suicidal ideation as the months went on; he began drafting farewell letters to family members. He went to see Megan in August 2013 to let her know he might not be around anymore; he was contemplating suicide, and he was hearing voices. On the Friday before Melanie was killed, defendant took K.P. to buy a baseball bat; when they returned home, defendant was served with the divorce papers. He took the papers into the house, asked K.P. if he knew what the papers were and told K.P. that his mother wanted to divorce defendant. K.P. threw the papers in the pool and told his parents to seek counseling. After an argument with Melanie, defendant thought they might try to go to counseling, so he left the papers in the pool. Melanie and K.P. went to a baseball game.
The next day, Saturday, Melanie told defendant he needed to get the papers out of the pool because she was still going through with the divorce, and defendant renewed his plan to kill himself. He recalled searching how to blow up the house on his phone because the following weekend K.P. and Melanie were going to be gone to a baseball game, and he thought that might be a good time to kill himself. Defendant fished the papers out of the pool and put them in his office to dry out. He did not look through the papers carefully until Monday. On Sunday, defendant took K.P. and a friend to play golf, and later that day Melanie took K.P. to Laura's house. Defendant had no idea K.P. would spend the night there.
On Monday, defendant elected to work from home rather than go to the coast, which he had the autonomy to do. He read through the divorce papers on Monday morning. Among other things, Melanie was seeking the residence, and another portion of the petition sought to restrict defendant to one call to K.P. a day for 10 minutes, dropping him at the curb after visitations and not walking him to the door. Each time defendant read something new in the petition papers, he would confront Melanie, and their conversations grew more heated. Defendant then got to the section of the petition where Melanie was seeking 90 percent custody of K.P., which caused defendant to "lose it" because he had "not done anything wrong." It caused defendant to flash back to his grief after their first child was stillborn.
Defendant approached Melanie in the garage to confront her about the custody. Melanie pushed him aside and went into the house. He continued to argue with her and why she was doing this, and Melanie told him that was what her attorney advised. Defendant said she could have any possessions, but not their son; he told her it was not fair. She pushed him aside and said, "oh well." Defendant flew into a rage; he experienced a horrible energy surge as though he had been struck by lightning. He could not remember what exactly he said to Melanie, but his hands went up toward Melanie's neck to defend against Melanie coming at him. The next thing he remembered was getting out of the pool and wondering why he was in the pool. He went to the shower and changed his shorts because they were wet. When he walked down the hall, he noticed what had happened and saw Melanie in the pool so he called 911.
DISCUSSION
I. Instructional Error
Dr. Terrell gave testimony relevant to defendant's mental state at the time he killed Melanie, and opined defendant was suffering from major depressive disorder with severe psychotic features at the time he killed her. The jury was instructed how to consider this mental impairment evidence under CALCRIM No. 3428:
"You have heard evidence that the defendant may have suffered from a mental disorder. You may consider this evidence only for the limited purpose of deciding whether[,] at the time of the charged crime[,] the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically malice aforethought. If the People have not met this burden, you must find the defendant not guilty of murder."
Defendant argues this instruction was legally incorrect because it prohibited the jury from considering mental impairment evidence to determine whether defendant formed the mental state necessary for first degree murder-i.e., premeditation and deliberation. Due to this preclusion, defendant maintains, the trial court effectively reduced the prosecution's burden of proving premeditation beyond a reasonable doubt, deprived defendant of a meaningful opportunity to present a complete defense and violated defendant's right to a fair trial and a reliable verdict. Although there was no objection to this instruction below, defendant maintains his claim is not forfeited because the court's failure to provide a legally correct instruction affected defendant's substantive rights under federal and state law.
The People respond the mental impairment instruction was correct as given; defendant's actual contention is that the instruction was merely incomplete because it did not explicitly inform jurors that they could consider evidence of defendant's mental disorder in deciding whether defendant premeditated and deliberated the killing. Since defendant did not object to the instruction at trial, the People assert the claim has been forfeited on appeal. Nevertheless, the People assert defendant's claim fails on the merits. Citing the California Supreme Court's decisions in two capital first degree murder cases, People v. Townsel (2016) 63 Cal.4th 25 (Townsel) and People v. Rogers (2006) 39 Cal.4th 826 (Rogers), the People contend there is no likelihood the jury, considering CALCRIM No. 3428 in the context of the entire body of instructions, would have misunderstood the mental impairment instruction as meaning it could not consider defendant's mental impairment when determining whether defendant killed Melanie with premeditation and deliberation.
A. Forfeiture
As provided by section 28, "[e]vidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged." (Id., subd. (a).) CALCRIM No. 3428 provides a pattern instruction when mental impairment evidence is admitted for the jury's consideration under section 28. The trial court has no sua sponte duty to instruct on mental impairment as a defense to a specific mental state. (People v. Saille (1991) 54 Cal.3d 1103, 1119 [instruction relating evidence of intoxication to required mental state is a pinpoint instruction that need not be given sua sponte]; People v. Larsen (2012) 205 Cal.App.4th 810, 824, 830 ["CALCRIM No. 3428 is a pinpoint instruction that must be given only if requested by the defendant"; it does not involve a "'"general principle of law"'" that requires the court to instruct sua sponte].)
Here, at the first trial, prior defense counsel had requested the court instruct with CALCRIM No. 3428. Although jury instructions were discussed off the record, defense counsel commented in court that "[a]ll the jury instructions I requested are in the packet ._" The court instructed the jury with the exact modified version of the pattern instruction in CALCRIM No. 3428 the jury was subsequently instructed with at the second trial.
Before the second trial, the court indicated it planned to use the same set of jury instructions given at the first trial, with the potential of some augmentation to address defendant's then-existing insanity plea. After new defense counsel was appointed, counsel requested one additional instruction under CALCRIM No. 350 regarding evidence of defendant's character for nonviolence. At the second trial, the instructions were again discussed off the record. The trial court ultimately instructed the jury under modified CALCRIM No. 3428, just as in the first trial.
Defendant withdrew his not guilty by reason of insanity plea before the second trial.
"In general, a defendant may raise for the first time on appeal instructional error affecting his or her substantial rights. [Citations.] But '[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.'" (People v. Buenrostro (2018) 6 Cal.5th 367, 428.) However, where a defendant claims the trial court gave a jury instruction incorrect in law, the forfeiture doctrine does not apply. (Ibid.; People v. Gomez (2018) 6 Cal.5th 243, 312 [forfeiture rule did not apply to claim that penalty phase instruction was incorrect statement of the law].) Here, defendant's argument is that the instruction is legally incorrect because it affirmatively limited the jury from considering mental impairment evidence as to the formation of premeditation and deliberation. Thus, the forfeiture rule does not apply, and we turn to the merits of his claim.
B. Standard of Review
We independently assess whether instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) "'"'"[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction."'"'" (People v. Young (2005) 34 Cal.4th 1149, 1202.) If an instruction appears ambiguous, "'we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.'" (Ibid.) The arguments of counsel bear on "the probable impact of the instruction on the jury." (Ibid.)
C. Analysis
Defendant contends the explicit language of CALCRIM No. 3428 told the jurors that the limited purpose for which they could consider the evidence of mental disorder was whether appellant possessed the mental state for the charged crime, specifically only malice aforethought: "You have heard evidence that the defendant may have suffered from a mental disorder. You may consider this evidence only for the limited purpose of deciding whether at the time of the charged crime the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically malice aforethought. If the People have not met this burden, you must find the defendant not guilty of murder." (Italics and boldface added.) According to defendant, this language had the effect of instructing the jury to consider the mental impairment evidence only with respect to the mental state for the charged crime of murder and precluded it from considering that evidence with respect to premeditation and deliberation relevant to first degree murder.
Different formulations of this argument have been addressed by the California Supreme Court. Generally, mental impairment instructions that fail to specifically identify premeditation and deliberation as relevant mental states are not erroneous "where the trial court either explained that premeditation and deliberation were mental states necessary for a conviction of first degree murder (People v. Musselwhite (1998) 17 Cal.4th 1216, 1247-1249; People v. Jones (1991) 53 Cal.3d 1115, 1145) or instructed that '"[t]he mental state required is included in the definition of the crime charged"' (People v. Smithey (1999) 20 Cal.4th 936, 988)." (Rogers, supra, 39 Cal.4th at p. 881; accord, Townsel, supra, 63 Cal.4th at p. 62.) In each of these cases, the high court considered whether the instructions, considered as a whole, would have caused a reasonable jury to fail to understand it could consider the mental impairment evidence to determine whether the defendant had formed any of the relevant specific intents at issue.
In People v. Castillo (1997) 16 Cal.4th 1009 (Castillo), the defendant shot two rival gang members, killing one of them. (Id. at p. 1012.) The defendant was charged with murder and attempted murder. (Id. at p. 1013.) At trial, the defendant testified he smoked PCP before the shootings, which affected his mental state. (Ibid.) As to the man the defendant killed, the court instructed the jury on first degree and second degree murder and involuntary manslaughter; the sole theory of first degree murder was premeditation and deliberation. (Ibid.) As to the second man the defendant shot but did not kill, the court instructed on attempted murder and assault with a firearm. (Ibid.) The trial court also gave a mental impairment instruction on voluntary intoxication under CALJIC No. 4.21: "'In the crimes of murder and attempted murder ..., a necessary element is the existence in the mind of the perpetrator of the specific intent to kill. [¶] If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether the defendant had such specific intent or mental state. [¶] If from all the evidence you have a reasonable doubt whether the defendant formed such specific intent or mental state, you must find that he did not have such specific intent or mental state.'" (Castillo, supra, at p. 1014, fn. 2.)
The Court of Appeal concluded the instruction was inadequate and misleading because it would have caused the jury to conclude it should consider the evidence of intoxication on the question of intent to kill, but not on the question of premeditation. (Castillo, supra, 16 Cal.4th at pp. 1015-1016.) Specifically, because the first sentence of the CALJIC No. 4.21 instruction referenced "'"specific intent to kill"'" and was completely silent as to mental state generally, a juror would have understood it to pertain only to the charge of attempted murder, and not as to the concept of premeditation for either premeditated attempted murder or premeditation as to the actual murder. (Castillo, supra, at p. 1016.) Our high court reversed and reasoned the instructions as a whole were not misleading. The court noted the instructions correctly explained the concepts of premeditation and deliberation such that a reasonable jury would have understood those to be mental states for which it should consider the evidence of intoxication as to either attempted murder or murder. (Ibid.) Further, the voluntary intoxication instruction was followed directly by an instruction under CALJIC No. 4.21.1, which expressly referred to an exception "'where a specific intent or mental state is an essential element of the crime.'" (Castillo, supra, at pp. 1015, fn. 2, italics added &1017.) "By relating intoxication to mental state, the instruction necessarily directed the jury's attention to evidence of intoxication as it related to premeditation and deliberation." (Id. at p. 1017.) The court concluded it was not reasonably likely the jury misconstrued the instructions as precluding it from considering the evidence of PCP use in deciding the degree of the murder. (Ibid.)
In Rogers, the defendant was convicted of the first degree murder of one victim and second degree murder of another and was sentenced to death. (Rogers, supra, 39 Cal.4th at p. 835.) Expert defense testimony indicated the defendant's childhood abuse would have affected his ability to form the requisite intent for the charged crimes. (Id. at pp. 841-842.) The jury was instructed that "'[e]vidence has been received regarding a mental disease . . . of the defendant at the time of the offenses charged in counts one and two and in the lesser included offense of voluntary manslaughter. You may consider such evidence solely for the purpose of determining whether or not the defendant actually formed the mental state which is an element of the crimes charged in the information and the crime of voluntary manslaughter.'" (Id. at p. 880.) The defendant argued it was error not to identify the specific mental states-premeditation and deliberation-to which the defendant's mental health evidence was relevant. (Id. at p. 880.) He argued the jury would have believed it could not consider the mental health evidence in determining whether the killing of the first victim was premediated and deliberated. (Id. at pp. 880881.)
The high court was unpersuaded and noted it had rejected similar claims that the failure to identify premeditation and deliberation as a mental state was error. (Rogers, supra, 39 Cal.4th at p. 881.) Although the jury was not informed that premeditation and deliberation were mental states, nor was the jury told the mental state required for each crime was included in the definition of that crime, the high court concluded the instructions nonetheless adequately informed the jury it could consider the mental disease evidence in deciding whether the defendant premediated and deliberated the killing of the first victim. (Id. at pp. 881-882.) The court reiterated there was no question the jury would have understood that premeditation and deliberation are mental states. The instruction on first degree murder fully explained these concepts, and the mental impairment instruction under former CALJIC No. 3.36 referred to the formation of a mental state and thus it necessarily directed the jury's attention to evidence of mental disease or defect as it related to the mental states of premeditation and deliberation. (Rogers, supra, at p. 882.)
Finally, in Townsel, the defendant was convicted of two first degree murders and of attempting to dissuade a witness from testifying; he was acquitted of shooting at an inhabited dwelling. (Townsel, supra, 63 Cal.4th at p. 29.) Expert evidence of the defendant's intellectual disability was admitted that suggested the defendant would have difficulty with judgment and decision making. (Id. at p. 43.) The jury was instructed under CALJIC No. 3.32 that "'[e]vidence has been received regarding a mental defect or mental disorder of the defendant, ... at the time of the crime charged in Counts 1 and 2. You may consider such evidence solely for the purpose of determining whether or not the defendant ... actually formed the mental state which is an element of the crime charged in Counts 1 and 2, to wit, murder.'" (Townsel, supra, at p. 59.) The defendant argued the instruction failed to include the dissuading charge and the witness-killing specialcircumstance allegation. (Id. at pp. 58, 59.) The defendant also argued that because the instruction told the jury to consider his mental defect evidence solely as to whether he formed the mental state, which is an element of the charged crimes "'in Counts 1 and 2, to wit, murder,'" it limited the jury's consideration of that evidence solely to the element of malice aforethought and precluded it from considering it as to premeditation and deliberation. (Id. at p. 60.)
Relying on Rogers, the court found the argument unpersuasive and concluded it had "no doubt" jurors would have understood from the instructions that premeditation and deliberation were "'mental states'"; the mental condition instruction directed them to consider the "'mental state which is an element'"; as such, the jurors would have known they were being directed to consider the intellectual disability evidence in deciding whether the defendant was guilty of first degree murder and the requisite mental states of premeditation and deliberation. (Townsel, supra, 63 Cal.4th at pp. 62-63 .) The jury had also been instructed that murders were classified into two degrees and that if it found the defendant guilty of murder, it was to determine and state in its verdict whether it found the murder to be first or second degree. (Id. at p. 63.) "This instruction necessarily directed jurors, once they found that [the] defendant killed with malice aforethought as charged in counts 1 and 2 . . ., to make the further determination whether he harbored the mental state required for first degree murder, a determination to which the intellectual disability evidence was thus equally relevant and applicable." (Ibid.) The court concluded there was no instructional error with respect to the murder convictions.
However, in directing the jury to consider the intellectual disability evidence solely on the question of whether the defendant formed the mental state required for the murder charges, the instruction effectively told the jury it could not consider the evidence on any other question before it. This effectively cut the jury off from considering the mental disability evidence as to the dissuading charge or the witness-killing special-circumstance allegation. (Townsel, supra, 63 Cal.4th at p. 63.) This was error under both state law and the federal Constitution. (Townsel, supra, at p. 64.) Finding this error prejudicial, the court reversed the conviction on the dissuading charge and the true finding on the witness-killing special-circumstance allegation, although reversal of the death penalty was not required. (Ibid.)
Turning to this case, defendant was charged with a single count of murder under section 187 with no degree specified. The instructions informed the jury that while defendant was charged with murder, the jury was being directed to consider different homicide offenses stemming from that single charged crime and that those offenses had different required mental states. In some of the very first instructions given, the jury was directed that "[t]he People must prove not only that the defendant did the act charged, but also that he acted with a particular intent and/or mental state. The instruction for the crimes given later explain [the] intent and/or mental state required." This alerted the jury there was an "act charged," but there were multiple offenses encompassed within that charge that it would be asked to consider.
Building on this concept, the jury was additionally instructed under CALCRIM No. 251 that "[t]he crime charged in this case and the lesser included offense require proof of the union or joint operation of act and wrongful intent. For you to find a person guilty of the crime of first degree murder or the lesser offenses of second degree murder, voluntar[y] manslaughter, or involuntary manslaughter, that person must not only intentionally commit the prohibited act, but it must also do [so] with a specific intent, and/or mental state. The act and the specific intent and/or mental state required are explained in the instructions for that crime."
The jury was then instructed on the degrees of murder and manslaughter offenses it was to consider based on the charged crime of murder. The instructions provided that "[h]omicide is the killing of one human being by another. Murder and manslaughter are types of homicide. The defendant is charged with murder. Manslaughter is a lesser offense to murder. I will instruct you on the different types of murder and manslaughter."
Immediately after this directive, the jury was instructed on the requirements for murder under CALCRIM No. 520, first degree murder under CALCRIM No. 521, voluntary manslaughter under CALCRIM No. 570, and involuntary manslaughter under CALCRIM No. 580. At the conclusion of the instruction for murder, the jury was told that "[i]f you decide that the defendant committed murder, it is murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in CALCRIM [No.] 521."
The very next instruction for first degree murder explained the People had to prove beyond a reasonable doubt that defendant "acted willfully, deliberately, and with premeditation" and described and defined each of these concepts. The jury was instructed that if the People did not carry their burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime, "you must find the defendant not guilty of first degree murder and [the] murder [is] second degree murder."
Embedded in the instruction on involuntary manslaughter under CALCRIM No. 580, the jury was once again instructed "[t]he People allege the defendant committed the crime of murder. Other instructions tell you what the People must prove in order to prove the defendant committed murder or lesser included offenses."
Finally, after the instructions for each of the homicide offenses the jury was to consider, the jury was instructed with the mental impairment instruction under CALCRIM No. 3428. To reiterate, that instruction directed the jury as follows: "You have heard evidence that the defendant may have suffered from a mental disorder. You may consider this evidence only for the limited purpose of deciding whether at the time of the charged crime the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically malice aforethought. If the People have not met this burden, you must find the defendant not guilty of murder."
Pursuant to Castillo, Rogers, and Townsel, the instruction's reference to "the intent or mental state required for that crime" is not deficient or legally incorrect just because it does not expressly reference the premeditation and deliberation mental states related to first degree murder. The other instructions clearly indicated to the jury it was to consider four homicide offenses stemming from the charged crime of murder, and that murder itself was divided into degrees; the jury was directed multiple times that each homicide offense had specific instructions articulating the relevant mental state required for that offense; and the concepts of premeditation, deliberation and willfulness were fully and correctly articulated in the first degree murder instruction. There is no question the jury knew the concepts of deliberation and premeditation were mental states required for conviction of the charged crime of murder in the first degree.
Defendant's argument is more precise, however, than just the fact the mental states required for each offense-and particularly first degree murder-were not expressly referenced in the mental impairment instruction. Rather, defendant's argument encompasses two parts. First, defendant maintains, the mental impairment instruction told the jury that it could consider the mental impairment evidence only for the limited purpose of deciding whether at the time of the charged crime the defendant acted with the intent or mental state required for that crime. Because the instructions explicitly identified premeditation and deliberation as separate from the murder instruction given in CALCRIM No. 520, the instructions separated the mental states for first degree murder from the mental state required for murder itself-i.e., malice aforethought. Thus, because the mental impairment instruction told the jury to consider whether, at the time of the charged crime, defendant acted with the intent or mental state required for that crime, defendant maintains the jury would have understood murder was the charged crime and the mental state for that crime was malice aforethought only.
Second, and compounding the problem in a manner different from Townsel and Rogers according to defendant, was the remainder of the mental impairment instruction, which provided that: "[t]he People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically malice aforethought. If the People have not met this burden, you must find the defendant not guilty of murder." By referencing the required intent or mental state, specifically malice aforethought, in combination with the first part of the instruction, defendant contends the instruction expressly limited consideration of the mental impairment evidence only as to the mental state for the charged crime of murder-i.e., malice aforethought.
We disagree the instruction limited the jury as defendant contends or that a reasonable jury would have parsed the language and misconstrued the instruction in that manner. First, as noted, the jury was repeatedly told that while defendant was charged with murder, there were other related homicide offenses the jury needed to consider that came with their own required mental states. Most importantly, the jury was informed the charged crime of murder itself was divided into two degrees and that it would be required to consider first degree murder if it concluded defendant had committed murder. Thus, when the mental impairment instruction directed the jury to consider the evidence only for the limited purpose of deciding whether at the time of the charged crime defendant acted with the intent or mental state required for that crime, the jury would have correctly understood that the crime of murder was divided into degrees and even encompassed lesser included manslaughter offenses all with specifically defined mental states.
Notably, the instructions in Townsel were organized just as they are here, with separate instructions for second and first degree murder. There, the mental impairment instruction directed the jury to consider the mental defect evidence only to determine whether the defendant formed the "'mental state which is an element of the crime charged in Counts 1 and 2, to wit, murder.'" (Townsel, supra, 63 Cal.4th at p. 59.) Exactly as the first amended information alleged here, the charging document in Townsel accused the defendant in counts 1 and 2 of violating section 187, subdivision (a), "'in that [the defendant] did willfully, unlawfully, and with malice aforethought murder[ed]'" the two victims-there was no reference to first degree murder or premeditation or deliberation noted in the charging document. (Townsel, supra, at pp. 60-61.) Also just like in this case, the instructions in Townsel directed the jury that murder was divided into two degrees, fully instructed on first degree murder and the requisite mental states of premeditation and deliberation, and then directed the jury that, if it found the defendant guilty of murder, it was to further determine whether the defendant harbored the mental state required for first degree murder. (Id. at p. 63.) In the full context of these instructions, the high court in Townsel reasoned the jury would have concluded from the mental impairment instruction that the mental impairment evidence was relevant and applicable to first degree murder mental states, even though it specifically directed the jury to consider the charged crime of murder. (Ibid.) The same is true of the jury here.
The Townsel jury was instructed under CALJIC No. 8.10 for murder and under CALJIC No. 8.20 for first degree murder, which described and defined the mental states for premeditation and deliberation. (Townsel, supra, 63 Cal.4th at pp. 60-61, fns. 6 & 7.)
The murder charge here and those in Townsel are distinct from a case where the only relevant charged crime is attempted murder with an attached special allegation that the attempt was premeditated and deliberated. Unlike murder, attempted murder is not divided into degrees. (People v. Favor (2012) 54 Cal.4th 868, 876.) Rather, attempted murder is subject to an alternate, higher penalty (id. at p. 877) if a special allegation of premeditation and deliberation is pleaded and proven (§ 664, subd. (a)). Due to this distinction between murder and attempted murder, the concepts of premeditation and deliberation in an attempted murder case may be instructionally presented to the jury as entirely distinct from the charged crime itself; they will not be presented as essential mental states of a degree of the charged crime. In this premeditated attempted murder context, reference to only the "charged crime" in a mental impairment instruction, without any inclusion of the premeditation and deliberation mental states, might not be understood by the jury as encompassing premeditation and deliberation.
Further, the second portion of the mental impairment instruction would not have caused the jury to misconstrue and misapply the instruction. The second paragraph told the jury "[t]he People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically malice aforethought. If the People have not met this burden, you must find the defendant not guilty of murder." (Italics added.) While this burden-of-proof component was not included in the mental impairment instructions in Townsel or Rogers, it is improbable the jury understood this burden-of-proof statement to limit consideration of the mental impairment evidence only to the formation of malice. This portion of CALCRIM No. 3428 instructs on the People's burden of proof with regard to murder generally-it did not purport to limit the jury's consideration of mental impairment evidence. The combined effect of the CALCRIM No. 520 instruction as to murder and the CALCRIM No. 521 instruction as to first degree murder made clear malice aforethought was the shared mental state for both degrees of murder necessary to a guilty verdict for either. In this context, the jury would have understood the burden-of-proof component to be restating the fact that if the mental state for murder was not proven by the People, defendant could not be found guilty of any degree of murder.
There is also nothing in the parties' closing arguments that would have caused the jury to misunderstand this instruction in the manner defendant asserts. Neither the prosecutor nor defense counsel argued expressly or impliedly that Dr. Terrell's testimony was only relevant to whether defendant formed malice aforethought as opposed to the other mental states at issue. Instead, the prosecutor noted first degree murder must be willful, deliberate and premeditated and those mental states fit "perfectly" with the facts before the jury. Immediately after making this argument, the prosecutor discussed Dr. Terrell's testimony. The prosecutor did not argue the jury could not consider that evidence to determine premeditation and deliberation; rather, he did just the opposite. The prosecutor highlighted Dr. Terrell's testimony, urged the jury to discredit it as based on too many inconsistent statements derived wholly from defendant, and beseeched the jury to convict defendant of first degree murder by finding his actions were willful, premeditated and deliberated. On rebuttal, the prosecutor again implored the jury to discredit Dr. Terrell's testimony, conclude defendant had acted with premeditation and deliberation, and find defendant guilty of first degree murder. The prosecutor's arguments reinforced that the jury was permitted to consider Dr. Terrell's testimony in deciding whether defendant acted with premeditation and deliberation in killing Melanie. (Rogers, supra, 39 Cal.4th at p. 882 [observing defense counsel's closing argument reinforced a legally correct understanding of the instruction].)
In light of the entire instructional charge and the prosecutor's closing arguments, there is no reasonable likelihood the jury would have understood the instruction under CALCRIM No. 3428 as limiting consideration of the mental impairment evidence only to the formation of malice aforethought. The instruction was legally correct; it did not violate defendant's substantive rights under state or federal law.
DISPOSITION
The judgment is affirmed.
WE CONCUR: PENA, Acting P. J. SNAUFFER, J.