Opinion
A149516
11-22-2017
THE PEOPLE, Plaintiff and Respondent, v. DARRELL LEVON REED, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 16006595, 225742)
Defendant Darrell Levon Reed appeals from his conviction for two misdemeanor counts of vandalism. Defendant contends the trial court erred by failing to give a sua sponte jury instruction on mental disorder. We find no merit in defendant's argument and affirm the judgment.
I. BACKGROUND
Defendant began dating A.S. approximately six years prior to trial. When they first met, defendant owned a scaffolding business. About two years into their relationship, defendant lost the business, lost his apartment, and became depressed. Defendant moved into A.S.'s home, where she lived with her teenage son. When the house A.S. lived in was sold, she and her son moved into her mother's house in San Francisco. A.S.'s mother did not want defendant to live with them, but eventually agreed he could stay a few months. Defendant lived there almost four years.
In March 2015, A.S. became "fed up" with defendant and told him he needed to move out. Defendant told her he had nowhere to go. Eventually defendant left the house, but when he tried to come back and A.S's mother told him he could not, he was upset. After A.S.'s mother changed the locks, defendant continued to contact A.S. everyday by texting, calling, and following her around. He told her she did not "have a right" to break up with him.
In June 2015, defendant appeared at A.S.'s workplace and yelled at her, threw a picture frame at her, knocked over brochures, and broke the mouse pad on a computer. After that incident, A.S. obtained a restraining order. Defendant continued to contact A.S. by texting, calling, and showing up in her presence.
In December 2015, A.S. left her office at lunchtime to find defendant standing outside. She had rented a car to use while she allowed her son's father to use her car. Defendant snatched the keys to the rental car from her hand and drove off in the rental car.
Two days later, A.S. saw defendant speeding in the rental car on the street where she still lived with her mother. A window on the side of the front door to her mother's house was broken. A couple days after that, defendant threw a brick through the window of her son's bedroom.
Defendant continued to send A.S. text messages. In scores of messages admitted at trial, he used foul language, called A.S. names, and threatened her and her family members. In one message, defendant wrote: " 'Do you know a big percentage of bipolar people commit suicide? Could you imagine how you would feel if I did that. Wow would you never, ever forgive your mother, your brother, or anyone else and yourself including guarantees.' " When asked if the message concerned her, A.S. testified she was "happy that he admitted he was bipolar" and said she "thought maybe that was a step towards him getting help for himself."
At trial, defendant admitted breaking the window near the front door and throwing a brick through the window to A.S.'s son's room because he wanted his belongings back. Defendant testified he was embarrassed by the harsh things he said to A.S. in the text messages.
In a 14-count amended information, defendant was charged with multiple counts of stalking, theft, misdemeanor vandalism, and disobeying a domestic relations court order, and one count of criminal threats. At the close of the prosecution's case, defendant was acquitted of several counts pursuant to a Penal Code section 1118.1 defense motion based on insufficiency of the evidence regarding service of the restraining order. At the conclusion of trial, defendant was acquitted as to four other counts and convicted of three of the misdemeanor vandalism charges (§ 594, subd. (b)(2)(a); counts III, VII and XI). The trial court sentenced defendant to 334 days in jail followed by two years' probation on counts III and VII, and suspended imposition of sentence for count XI.
All statutory references are to the Penal Code.
II. DISCUSSION
Defendant challenges only his conviction on two of the misdemeanor vandalism charges related to the broken windows (counts VII and XI). To return a guilty verdict on those counts, the jury was required to find defendant maliciously damaged or destroyed real or personal property. (§ 594, subd. (a).) One acts "maliciously" when he or she intentionally does a wrongful act or acts with unlawful intent to vex, annoy, or injure another person. (§ 7, subd. (4); CALCRIM No. 2900 [vandalism instruction].) Defendant's sole contention on appeal is the trial court should have instructed the jury to acquit if it found he was suffering from bipolar disorder and thus lacked the requisite intent to break windows at A.S.'s mother's home.
Defendant fails to cite apposite legal authority or identify any specific jury instruction the court should have given. As the Attorney General notes, however, section 28, subdivision (a) provides: "Evidence of a 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 . . . when a specific intent crime is charged." A jury may consider evidence of mental impairment that negates the actual formation of any specific mental state required for the crime charged—here, as defendant apparently argues, malice. (See, e.g., People v. Reyes (1997) 52 Cal.App.4th 975, 982-986 [evidence of voluntary intoxication was relevant to knowledge element in crime of receiving stolen property].) The CALCRIM No. 3428 instruction on mental impairment, which is based on section 28, reads in relevant part: "You have heard evidence that the defendant may have suffered from a mental (disease[,]/[or] defect[,]/[or] disorder). You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or mental state required for that crime."
Defendant's failure to cite relevant legal authorities is an additional basis to reject his argument. (People v. Stanley (1995) 10 Cal.4th 764, 793 [when defendant fails to support an argument with citations to authority, we may treat it as waived].)
As an initial matter, we question whether CALCRIM No. 3428 would apply in this case because vandalism is a general intent crime. (See People v. Atkins (2001) 25 Cal.4th 76, 85-86 (Atkins) [explaining " 'A crime is characterized as a "general intent" crime when the required mental state entails only an intent to do the act that causes the harm; a crime is characterized as a "specific intent" crime when the required mental state entails an intent to cause the resulting harm' "; and noting term "malicious" generally does not transform offenses into specific intent crimes]; People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1281-1282 ["malice" required for vandalism does not require actual ill will or intent to injure or do damage].) As section 28 explicitly provides, evidence of a mental disorder is admissible to negate specific intent "when a specific intent crime is charged." (Id., subd. (a), italics added.) We recognize some courts have found certain crimes classified as "general intent crimes" are "specific intent crimes" with respect to an element of the crime for purposes of section 28 on mental impairment, or section 29.4, subdivision (b) on voluntary intoxication. (See People v. Reyes, supra, 52 Cal.App.4th at p. 985 [holding "with regard to the element of knowledge, receiving stolen property is a 'specific intent crime,' as that term is used in [former] section 22, subdivision (b), and section 28, subdivision (a)"]; People v. Mendoza (1998) 18 Cal.4th 1114, 1131-1134 (Mendoza) [evidence of voluntary intoxication is admissible to disprove knowing and intentional elements of aider and abettor liability].) Those cases, however, do not suggest "malice" as an element of vandalism would likewise be classified as a specific mental state for purposes of section 28 and CALCRIM No. 3428. Rather, apposite authority suggests to the contrary because malice, by definition, requires only an intent to do a wrongful act. (See Atkins, at pp. 86, 92-93 [distinguishing Mendoza because definition of arson, unlike aiding and abetting, does not refer to intent to do some further act or achieve additional consequence]; In re V. V. (2011) 51 Cal.4th 1020, 1028 [though malice in fact involves actual ill will or intent to injure, malice in law requires only intentional doing of an act without justification, excuse, or mitigating circumstances]; People v. Kurtenbach, at pp. 1281-1282 [definition of malice requires either " 'a wish to vex, annoy, or injure another person' " or " 'intent to do a wrongful act' "].) However, since neither party addressed this issue, and we affirm on other grounds discussed below, we need not resolve it.
Assuming for the sake of argument CALCRIM No. 3428 would be available, we note a 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 " ' "general principle of law" ' " that imposes a sua sponte duty of instruction on the trial court].) Because defendant did not request the instruction, the trial court did not err by not giving it.
Moreover, it is well established a trial court only has an obligation to instruct on defenses supported by substantial evidence. (People v. Pollock (2004) 32 Cal.4th 1153, 1176; People v. Wooten (1996) 44 Cal.App.4th 1834, 1848.) " 'Substantial evidence is "evidence sufficient 'to deserve consideration by the jury,' not 'whenever any evidence is presented, no matter how weak.' " ' " (People v. Wilson (2005) 36 Cal.4th 309, 331.)
In the context of CALCRIM No. 3428, substantial evidence requires expert testimony to prove the existence of a mental disorder. (People v. Larsen, supra, 205 Cal.App.4th at p. 824.) "[E]xpert medical opinion testimony is necessary to establish that a defendant suffered from a mental disease, mental defect, or mental disorder within the meaning of CALCRIM No. 3428, because jurors cannot make such a determination from common experience." (Ibid.; see People v. Moore (2002) 96 Cal.App.4th 1105, 1117.) Here, no expert testimony was offered. As defendant concedes, the only evidence regarding a mental disorder was the text message he sent A.S. making a general remark about bipolar disorder, and A.S.'s testimony she interpreted the message as an admission he was bipolar. Such evidence is a far cry from an expert medical opinion on defendant's mental state.
Nor was a theory of mental impairment presented to the jury. Defendant points to no testimony or other evidence he offered to show how his alleged bipolar disorder affected his intent. At trial, he testified he broke the windows because he was "frustrated trying to get his things back" and was "being stupid" and "wasn't thinking" at the time. Defense counsel made no reference to bipolar disorder in closing. Accordingly, not only was the court not required to give the instruction sua sponte, it may well have been error to give it if requested. (See, e.g., People v. Cox (1990) 221 Cal.App.3d 980, 989-990 [instruction on voluntary intoxication would have been improper where intoxication defense was not asserted by defendant nor supported by expert evidence]; People v. Andersen (1994) 26 Cal.App.4th 1241, 1250 [trial court has a duty to refrain from instructing on irrelevant and confusing principles of law].)
In sum, because defendant failed to request a pinpoint instruction and there was no substantial evidence he was bipolar, the trial court did not err in failing to instruct on mental impairment.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.