Opinion
NOT TO BE PUBLISHED
Superior Court County No. BA265122, of Los Angeles, Rand S. Rubin, Judge.
Tarlow & Berk, PC, Barry Tarlow, Mi Kim for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane E. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Francis Anthony Tribble appeals a judgment after his conviction of second degree murder (Pen. Code, §§ 187, subd. (a), 189), battery with serious bodily injury (§§ 422, 243, subd. (d)); assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), hit and run driving (Veh. Code, § 20002, subd. (a)), and driving with a suspended or revoked license (id., § 14601.1, subd. (a)). He received a sentence of 15 years to life.
Tribble drove his car erratically, collided with other vehicles, sped away, drove into oncoming traffic and crashed into a vehicle, killing one person. He claims that he was in a state of prednisone-induced delirium. In response, the prosecution introduced psychiatric testimony and statements Tribble made to police and a treating doctor while he was in the hospital.
Tribble contends the trial consists of a multiplicity of errors. We conclude, among other things, that 1) Tribble's statements to his doctor were admissible, 2) his statements to police were properly introduced, 3) a Bevins instruction on the voluntariness of those statements was not required, 4) the trial court properly admitted evidence showing cocaine metabolite in his system, 5) it gave a proper limiting instruction on how to evaluate that evidence, 6) it properly admitted evidence that he lied when he denied using illegal drugs, and 7) an expert's irrelevant comment about the guilt of criminal defendants was not unduly prejudicial.
We also conclude that 8) the prosecutor's remark about a "concocted" defense was not misconduct, 9) an inaccurate reference to a witness's testimony was not prosecutorial misconduct, 10) the cross-examination of Tribble's mother was not improper, 11) the prosecutor did not solicit a witness to make a prejudicial remark, 12) the court properly ordered a juror not to discuss her experience with prednisone, 13) Tribble's counsel's negotiated agreement for Tribble to take a psychiatric examination with a prosecution expert did not contravene Tribble's Fifth Amendment rights, 14) Tribble has not shown ineffective assistance of counsel, 15) substantial evidence supports the judgment, 16) the instructions on circumstantial evidence (CALCRIM No. 225) were sufficient, 17) a metabolite definition instruction was not required, 18) CALCRIM No. 358 was a proper instruction for evaluating Tribble's out-of-court statements, and 19) the admission of lay opinion testimony was not prejudicial.
FACTS
Ryan Anderson was driving southbound on Cahuenga Boulevard near the intersection of Cahuenga and Barham Boulevard. As Tribble's SUV approached him, Anderson noticed that Tribble "was driving very crazily" and "on the wrong side of the road." Tribble collided with an Acura and did not stop. He then "gunned" the motor, accelerated, and was "swerving onto the wrong side of the road" as he drove away.
Glen Breathour saw Tribble run a red light before hitting the Acura. After hitting it, Tribble fled the scene and drove directly into oncoming traffic at speeds up to 80 miles an hour. Tribble was "zigzagging" around the cars that were in front of him.
While driving on the wrong side of the road, Tribble sideswiped a vehicle driven by Leonicio Velasquez. Tribble fled the scene and continued to drive on the wrong side of the road. He drove down a hill, hit another vehicle and "kept going."
Dmitry Entine testified that Tribble drove towards him on the wrong side of the road and was travelling at "double [the] speed limit." Entine swerved his vehicle to the right to avoid being hit.
Tribble eventually crashed into Uwe Schmitke's vehicle. Schmidke died as a result of the injuries he suffered in the collision.
Police Officers Emanuel Sanchez and George Bowens questioned Tribble when he was in the hospital. In a recorded interview, Sanchez asked, "How you doing?" Tribble responded, "Fine, but... I'm in the ER." Tribble explained what happened. He said that he was going to pick up his son. He came out of a gas station and "went straight." "[S]omebody cut me off, and I went to go to my left to try to find some room. [¶]... [¶] Because I couldn't go to my right, and a car starts beeping behind me[,] I panicked." Tribble said, "I ended up going into these two cars." When Bowens asked another question about the fatal crash, Tribble responded, "I just felt so fuzzy I don't remember anything."
Bowens testified that when he questioned Tribble, he was responsive and coherent. Tribble was not confused or disoriented and was able to recall certain details.
David Pechman, M.D., an orthopedic surgeon, testified that prior to performing surgery on Tribble, he had to obtain information from him about his medical history. Tribble was coherent and responsive. He told Pechman that he had not taken any illegal drugs. But in reviewing medical data, Pechman noticed that Tribble had tested positive for cocaine metabolite. Pechman testified that Tribble "had taken cocaine at some point." He talked to Tribble about the medical records that showed the presence of cocaine. Tribble again denied that he had used cocaine.
In the defense case, Lester Zackler, M.D., a psychiatrist, testified that Tribble had been taking prednisone, a medication, "which has a very significant effect on the brain and behavior." At the time of the collisions, Tribble was in a state of prednisone-induced delirium. He lacked a "subjective awareness" of his conduct and was "functionally unconscious." Tribble's inability to remember certain details of the collisions was caused by the delirium. On cross-examination, Zackler said Tribble was "functioning fine before this collision" and that he had no history of "any type of cognitive disorder."
In rebuttal, the prosecution's expert, Gordon Plotkin, M.D., a forensic psychiatrist, testified that delirium is "an altered state of consciousness." The symptoms are "being disoriented, not knowing where you are, why you're there [and] what's happening around you." He said Zackler's analysis was incorrect because "there is no data whatsoever to support a diagnosis of prednisone delirium." If Tribble had taken prednisone the day before the collision, it would "be out of his system" by the time he was driving. There were no psychotic symptoms. Tribble told Plotkin that "he was not hearing any voice, having any vision, wasn't delusional, wasn't paranoid, didn't think anybody was out to get him. Those are psychotic symptoms."
DISCUSSION
I. Admitting Tribble's Pretrial Statements
Tribble claims that the trial court erred by admitting his out-of-court statements at trial because they were involuntary. The People respond that 1) Tribble waived this issue by not raising appropriate objections, and 2) the claim on its merits fails. We agree with the People.
In the hospital, in a recorded interview, Tribble told police details about his driving. When the police focused on the fatal crash, Tribble claimed he did not remember anything. The prosecution used statements Tribble made to the police and to Dr. Pechman to refute his defense that he was in a state of delirium and had amnesia. Tribble claims the court erred because it did not hold a hearing to determine whether these statements were voluntary, nor did it make a finding on voluntariness before the statements were admitted.
The People respond that Tribble waived these issues because he did not file a motion to exclude evidence. Where the defendant claims his statements were involuntary but does not file a motion to exclude evidence, as here, the trial court does not have the "opportunity to resolve material factual disputes and make necessary factual findings." (People v. Ray (1996) 13 Cal.4th 313, 339.) "Under such circumstances, a claim of involuntariness generally will not be addressed for the first time on appeal." (Ibid.)
Tribble claims he raised sufficient objections at trial to the voluntariness of his statements to police. We disagree. Tribble objected on grounds of the best evidence rule and prosecution discovery violations. He moved to exclude a reference that he had "consent[ed] to a blood draw." But these objections did not preserve the voluntary statement issue that Tribble now raises. (People v. Rundle (2008) 43 Cal.4th 76, 120-121, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421; People v. Demetrulias (2006) 39 Cal.4th 1, 22.)
Tribble claims he raised adequate challenges at trial to the reliability and voluntariness of his statements to Pechman. But he objected to Pechman's testimony about cocaine metabolite and the denial about using illegal drugs on relevance and Evidence Code section 352 grounds. His counsel made only a passing reference to the reliability of his statements and said, "The People would be in a stronger position if they had a confirmatory test...." But that does not amount to a specific objection that the statements were not reliable or voluntary. (People v. Demetrulias, supra, 39 Cal.4th at p. 22; People v. Ray, supra, 13 Cal.4th at p. 339.)
Yet, even on the merits, Tribble has not shown error. His statements to police were voluntary and there was no coercive police conduct. The interview was short, the questions were not intimidating and the officers were polite.
Tribble claims his mental state at the hospital required the court to exclude this evidence on due process grounds. But "'[t]he due process inquiry focuses on the alleged wrongful and coercive actions of the state... and not the mental state of defendant.'" (People v. Guerra (2006) 37 Cal.4th 1067, 1097.) Even though Tribble was there for treatment, "[a]bsent some indication of coercive police activity, an admission or confession cannot be deemed involuntary within the Due Process Clause of the Fourteenth Amendment." (People v. Perdomo (2007) 147 Cal.App.4th 605, 619.)
Moreover, Tribble's interview with police refutes his claim that his "thinking was impaired by the medications." (People v. Perdomo, supra, 147 Cal.App.4th at p. 617.) Bowens' testimony shows that Tribble was coherent. When asked how he was doing, Tribble responded, "Fine." He was not disoriented or confused. He told the officers "I'm in the ER." He understood the officers' questions and provided direct responses. He was not hampered in his ability to respond.
Tribble claims that his statements to Pechman were involuntary and inadmissible. But Pechman said Tribble was of sound mind, cognizant and coherent. Tribble showed no signs of delirium or psychosis and was competent to consent to surgery. There is no evidence that Pechman coerced Tribble to make involuntary responses.
Moreover, any alleged error is harmless. The prosecution's case was strong and the evidence of Tribble's guilt was compelling. From the testimony of several prosecution witnesses, the only reasonable inference is that Tribble was driving with a wanton disregard for human life. Tribble's claim that he was in a state of delirium was undermined by his ability to maneuver around cars in front of him and refuted by his responsive answers in the police interview. Although Dr. Zackler said he was in a state of delirium, he acknowledged that Tribble was "functioning fine before this collision" and that he had no history of "any type of cognitive disorder." He also said that if Tribble had lied to him, his diagnosis might be different. The medical evidence demonstrated that Tribble lied to a treating doctor about his use of illegal drugs. Tribble's statements to Dr. Plotkin were inconsistent with his defense that he was suffering from a mental disorder or delirium. Moreover, Tribble's ability to give police details about the incident undermined his claim that he was unconscious while driving. (People v. Heffington (1973) 32 Cal.App.3d 1, 10.)
II. Instructing the Jury on the Voluntariness of Tribble's Statements
Relying on People v. Bevins (1960) 54 Cal.2d 71, Tribble claims the trial court should have instructed jurors that they must determine the voluntariness of his pretrial statements and must disregard them if they found them to be involuntary.
But the Bevins rule was changed by statute decades ago. (People v. Burton (1971) 6 Cal.3d 375, 389.) Consequently, the trial court did not err in not instructing the jury to determine the voluntariness of the statements. (People v. Haydel (1974) 12 Cal.3d 190, 203, fn. 7.) Moreover, even had that issue been presented to the jury, there is overwhelming evidence that his statements were voluntary.
III. Admitting Cocaine Metabolite Evidence
Tribble contends the trial court erred by allowing the prosecution to admit evidence that cocaine metabolite was detected in his system. He claims this evidence was so irrelevant and inflammatory that a reversal is required.
"The trial court has considerable discretion in determining the relevance of evidence." (People v. Williams (2008) 43 Cal.4th 584, 634.) "[R]elevant evidence is defined as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.'" (Id. at p. 633.) The People note that several of Tribble's challenges to this evidence were not raised in the trial court. But, even if the evidence had been introduced over objection, Tribble has not shown that the court abused its discretion.
Tribble claims he was in a state of "delirium" caused by taking prescription medications, which made him "functionally unconscious," and that this mental state explains his amnesia about the fatal collision.
Tribble argues that the cocaine metabolite evidence was not relevant to refute his defense. But the prosecution may challenge the factual foundations for a defense based on a mental condition. (People v. Lucero (2000) 23 Cal.4th 692, 720.) This evidence, combined with Tribble's false statements at the hospital, supported the prosecution's position that his defense was constructed on a series of lies about amnesia, unconsciousness, delirium, and a falsified medical history. The prosecution claimed his denial about not using illegal drugs was motivated by his consciousness of guilt and that his ability to falsify his medical history refuted his claims that he had amnesia, was unconscious or in a state of delirium.
At the hospital Dr. Pechman asked Tribble whether he had used illegal drugs. Tribble said he had not. But medical data showed he tested positive for cocaine metabolite. When Pechman showed him this medical data, Tribble again denied he had used cocaine.
The prosecution may, as here, introduce physical evidence to show that a defendant's statement was false, and then the jury may decide whether he "lied to hide his complicity in the crime.... The question is one of weight, not admissibility." (People v. Kimble (1988) 44 Cal.3d 480, 498.) Here triers of fact could reasonably infer that Tribble knew the consequences of a truthful answer and gave a false one to "evade responsibility." (People v. Cain (1995) 10 Cal.4th 1, 32.) "[F]alse statements by a defendant are admissible to demonstrate consciousness of guilt." (People v. Hughes (2002) 27 Cal.4th 287, 335.) Tribble suggests that there are justifiable and non-incriminating reasons for his response to the doctor's question. But that does not preclude the admission of this evidence. Evidence of "a false denial remains relevant evidence of consciousness of guilt even if there also exists a possible alternate basis for the false denial that would not incriminate defendant as to the charged offenses." (Ibid.)
Moreover, where a defense is based on a medical history, as here, evidence that the defendant falsified that history is relevant. (People v. Lucero, supra, 23 Cal.4th at p. 720.) Evidence of Tribble's false statement was highly probative as it showed that he was so conscious of his guilt that he was willing to potentially sacrifice his health by falsifying his medical history before surgery. Dr. Plotkin said Tribble's conscious ability to lie about not using illegal drugs was also inconsistent with a patient being in a state of delirium.
Whether Tribble lied is also a critical issue in evaluating the testimony of the defense psychiatric expert who based his opinions on the assumption that Tribble was truthful in representing facts. Tribble's expert said, "If he's lying to me, then my opinions are wrong." (Italics added.) Where a defendant raises a psychiatric defense based on his version of facts, the prosecution may challenge the foundations for the psychiatric opinions by showing the defendant lied. "'When... psychiatric experts' opinions... are based in substantial part on statements made to them by the defendant, inquiry into the basis for the experts' belief that the defendant was honest and their knowledge of past deceitful conduct is permissible.'" (People v. Lucero, supra, 23 Cal.4th at p. 720.)
Tribble suggests that the scientific foundation for using cocaine metabolite as an indicator of cocaine usage was not established. He claims there was no hearing by experts to establish the preliminary facts for admissibility. Immediately before Pechman testified, the trial court heard Tribble's objections to the introduction of this evidence. But Tribble did not request an evidentiary foundational hearing. The court was not required to hold one sua sponte. (People v. Kaurish (1990) 52 Cal.3d 648, 688.)
But, even on the merits, Tribble has not shown why an evidentiary hearing was required to pinpoint when cocaine was present in his system. The prosecution was not claiming that Tribble was driving under the influence of cocaine. Moreover, Tribble's own expert confirmed the reliability of this type of testing. Dr. Zackler was asked, "[C]ocaine metabolite is only present when the person at some point took cocaine; is that correct?" He replied, "Yes. It's a reasonably sensitive test." He also said, "[O]ne of the toxicology screens showed that he tested positive for cocaine metabolite."
Testing body fluids for traces of illegal drugs is well recognized. (People v. Nolan (2002) 95 Cal.App.4th 1210, 1215; People v. Bury (1996) 41 Cal.App.4th 1194, 1201; People v. Municipal Court (Sansone) (1986) 184 Cal.App.3d 199, 201; People v. Coleman (1988) 46 Cal.3d 749, 775.) The scientific acceptance of cocaine metabolite testing is also well established. (People v. Bui (2001) 86 Cal.App.4th 1187, 1194; People v. Robinson (2000) 85 Cal.App.4th 434, 440; Ruiz-Troche v. Pepsi Cola of Puerto RicoBottling Co. (1st Cir. 1998) 161 F.3d 77, 83-85; Warren v. State (Fla. 1991) 577 So.2d 682, 683-684; Manning v. State (Tex. 2003) 114 S.W.3d 922, 927 ["evidence of the metabolite was strong evidence that [defendant] had consumed cocaine"].)
Moreover, doctors may properly testify about the tests for drugs that they relied on in determining whether a patient, such as Tribble, is ready for surgery. (People v. Cegers (1992) 7 Cal.App.4th 988, 997-998.) A treating doctor's conclusions about the patient's drug use as documented in medical records has long been regarded as reliable evidence. (People v. Haendiges (1983) 142 Cal.App.3d Supp. 9, 17-18; Gunn v. Employment Development Dept. (1979) 94 Cal.App.3d 658, 665, fn. 6; People v. Blagg (1968) 267 Cal.App.2d 598, 609; People v. Vignoli (1963) 213 Cal.App.2d 855, 856; People v. Gorgol (1953) 122 Cal.App.2d 281, 299.)
Tribble claims that allowing his doctor to testify about laboratory results documented in his medical records contravened his Sixth Amendment confrontation rights. He argues such medical history contains testimonial hearsay. But Tribble waived this issue by 1) not raising it as one of his objections during trial before Pechman testified, and 2) not objecting on this ground when Pechman testified about the medical history. But, again, even on the merits, the result is the same.
Here, as in People v. Cage (2007) 40 Cal.4th 965, 986, "the primary purpose" of this medical history "was not to establish or prove past facts for possible criminal use, but to help [the treating doctor] deal with the immediate medical situation he faced." Here, the testing was for Tribble's benefit "to ensure [his] proper treatment" before surgery. (Id. at p. 987.) That is distinguishable from laboratory tests requested by the police and the prosecutor for the purpose of establishing a criminal case. (Id. at pp. 986-987.) The issue was whether Tribble falsified his medical history. His treating doctor was the best qualified expert to testify about that (Gunn v. Employment Development Dept., supra, 94 Cal.App.3d 658, 665, fn. 6), and Tribble exercised his confrontation rights by cross-examining him.
Moreover, Tribble has not shown prejudicial error. Tribble's counsel extensively cross-examined Pechman. But he did not ask about his expertise and ability to identify cocaine use from medical records or his knowledge about metabolites as an indicator of cocaine. The main thrust of the defense on cross-examination was to challenge Pechman's expertise in evaluating psychiatric symptoms. In fact, when Pechman first opined on direct that Tribble had used cocaine, the defense did not object on the ground that he lacked the expertise to render that opinion. From that testimony alone, the jury could reasonably infer Tribble had falsified his medical history.
Tribble also argues that the prosecution did not meet the foundational elements to introduce evidence of bad acts, to show propensity to commit crimes, or to establish a character trait for dishonesty. But this evidence was not introduced for these purposes; it was to refute Tribble's defense. Tribble contends the evidence was prejudicial because it involved illegal drugs. But it was introduced for a limited purpose to determine his credibility, and the trial court gave a limiting instruction to guide the jury.
IV. The Limiting Instruction on Cocaine Metabolite
Tribble claims the court erred by giving a limiting instruction on how to evaluate the cocaine metabolite evidence. We disagree.
Special Instruction No. 303 provided, "During the trial, certain evidence was admitted for a limited purpose. [¶]... [¶] The people introduced evidence of a metabolite of cocaine that was found in the blood of Mr. Tribble at the time he arrived at the hospital on May 10, 2004. This does not mean that Mr. Tribble was under the influence of cocaine at the time he was driving. You may not consider this evidence for the purpose of showing that he was driving under the influence of cocaine. [¶] You may consider the evidence solely for the purpose of evaluating his credibility at the time he was answering questions regarding his medical history at the time he was admitted to the hospital. The weight that you give this evidence is up to you as jurors, but you may consider the evidence only for this limited purpose and for no other."
Tribble claims Special Instruction No. 303 is confusing and unrelated to the evidence. The People respond that Tribble is estopped to make this argument because his trial counsel assisted in drafting the instruction and represented that it was appropriate. Tribble's counsel told the court, "That's fine. I think that that's a pretty good limiting instruction." "'The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.... [I]t also must be clear that counsel acted for tactical reasons....'" (People v. Coffman (2004) 34 Cal.4th 1, 49.)
Tribble's counsel had a tactical reason for the wording of Special Instruction No. 303. He did not want jurors to assume Tribble was under the influence of cocaine at the time of the collision. The instruction was carefully drafted to achieve that goal. Tribble suggests it is incomplete. But because this was a special instruction requested by his counsel for a tactical purpose, Tribble "forfeited a challenge to the completeness of the instruction by failing to request clarifying or amplifying language" at trial. (People v. Riggs (2008) 44 Cal.4th 248, 309.)
Moreover, the instruction is not confusing. It sets forth in concise language the limitations on how jurors must consider this evidence. The trial court, at the request of defense counsel, took the added precaution of reading the instruction to jurors before the evidence was introduced and asking each juror whether they understood it. Each juror answered in the affirmative. The instruction was not given in isolation. The court gave additional instructions on the issue of consciousness of guilt. Tribble has not shown that reasonable jurors would be confused about how to consider the evidence.
V. Admitting Dr. Pechman's Testimony
Tribble contends that Dr. Pechman's testimony about Tribble's statement that he did not use illegal drugs was inadmissible because it did not fall within the limiting instruction (No. 303). He claims that instruction allows evidence only about "answering questions regarding his medical history at the time he was admitted to the hospital." (Italics added.) Tribble notes that Pechman asked the questions about his medical history several hours after he arrived at the hospital.
But Tribble waived this issue. If he wanted to preclude Pechman from testifying on these grounds, he should have raised them at trial. His failure to do so "bars his complaints on appeal." (People v. Barnett (1998) 17 Cal.4th 1044, 1171.) But, even on the merits, the result is the same. The purpose of the instruction was to guide jurors in evaluating Pechman's testimony about his question to Tribble about his medical history. Tribble points out now that the language "at the time he was admitted to the hospital" is surplusage. But he has failed to show that any reasonable juror would be confused. Pechman was the one who took Tribble's medical history. Tribble's credibility at the time he was answering Pechman's questions was the relevant issue. Tribble suggests that Pechman's testimony about his condition is irrelevant because he (Pechman) did not consult with him when he first entered the hospital. But Pechman reviewed the hospital's medical records before he talked with Tribble and said there was no indication of any mental disorder. From this, jurors could draw a strong inference that Tribble was not delirious at any time while he was in the hospital. Given the strength of the prosecution's case, Tribble has not shown any reversible error.
VI. Dr. Plotkin's Testimony
Tribble contends the court committed reversible error by failing to cure the harm caused by two prejudicial sentences of Dr. Plotkin's testimony. We disagree.
The prosecutor asked Plotkin how the fact that Tribble had lied about his drug use was "relevant to [him] in [his] analysis of the fact that the defendant wasn't in a prednisone-induced delirium." Plotkin responded, "Well, let's make the assumption that in almost all of my cases where I've seen criminal defendants, unless we're specifically there to talk about the circumstances of a crime that they're agreeing to, they almost all are innocent. Of course, they all end up being convicted, not all--" (Italics added.)
Tribble's counsel objected and the trial court struck his answer. The court later gave the jury the following instruction, "If I ordered testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose." This informed jurors not to consider the stricken testimony of any witness, including Plotkin. We presume that the jury followed this instruction. (People v. Cruz (2001) 93 Cal.App.4th 69, 73-74.) If Tribble felt it was inadequate, he could have requested a supplemental instruction before the jury went into deliberations. (People v. Chatman (2006) 38 Cal.4th 344, 368.) Reasonable jurors would understand that the remark was extraneous and should be ignored.
Plotkin's response was short and did not directly refer to Tribble. Plotkin referred to his experience with criminal defendants in general. He said, "[T]hey all end up being convicted," but he then corrected that remark by stating that "not all" are convicted. No reasonable juror would conclude he was predicting that Tribble would be convicted. Given the strength of the prosecution's case, Tribble has not shown prejudice.
VII. Prosecutorial Misconduct
Tribble contends the prosecutor committed prejudicial misconduct. We disagree. "Prosecutorial misconduct is reversible under the federal Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.'" (People v. Guerra, supra, 37 Cal.4th at p. 1124.) "'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.'" (Ibid.)
To preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition. (People v. Kipp (2001) 26 Cal.4th 1100, 1130.) The prosecutor is given wide latitude in making vigorous arguments based on the evidence at trial. (People v. Hill (1998) 17 Cal.4th 800, 819.)
A. The Concocted Defense Statement
In her opening statement, the prosecutor summarized the testimony of prosecution witnesses. She then said, "[W]hat the evidence will show regarding [the defense] experts is that the defense is a made-up, concocted defense...." (Italics added.)
Tribble claims this was misconduct because the prosecution had no evidence to support the concocted defense remark. The defense expert testified that Tribble was suffering from prednisone delirium. But the prosecution's psychiatric expert testified, "[T]here is no data whatsoever to support a diagnosis of prednisone delirium." Dr. Pechman's testimony also refuted the delirium claim.
The prosecutor could have used a better term, but there was evidence to support the claim that the defense theory had no scientific support. She was entitled to ask jurors to draw negative inferences about that theory based on that testimony. She "vigorously denigrated the defense case, as was [her] right as an advocate." (People v. Valencia (2008) 43 Cal.4th 268, 305.) There was no misconduct. (Ibid.; People v. Hill, supra, 17 Cal.4th at p. 819.)
B. Misquoting a Prosecution Expert
During trial, Dr. Plotkin, the prosecution expert, testified that Dr. Zackler, the defense expert, "calls himself a neuropsychiatrist. There is no such thing as a neuropsychiatrist. It's a self-given term."
Zackler testified that there is a new subspecialty of neuropsychiatry "within neurology and psychiatry."
In her closing argument, the prosecutor responded to a defense attack on Plotkin regarding his neuropsychiatrist remark. She said, "What Dr. Plotkin said was there's no subcategories entitled neuropsychiatry, I think, of doctors who are certified to practice under the American Board of Medicine, and in that there is no subspecialty."
Tribble claims this was misconduct because her remarks were different from the language Plotkin used and her intent was to falsely denigrate the defense expert. But he waived this claim by not objecting at trial.
Moreover, Tribble has not shown that the prosecutor's brief and minor variation from Plotkin's testimony on this collateral issue caused any prejudice. (People v. Anderson (1990) 52 Cal.3d 453, 473.) Plotkin believed psychiatrists should not call themselves neuropsychiatrists. But psychiatric experts often have divergent opinions. (Gray v. Superior Court (2002) 95 Cal.App.4th 322, 330.) Whether they are correct is a matter for the trier of fact. (Ibid.) There was no misconduct.
C. Inaccurate Statement about Eyewitness Testimony
Tribble claims the prosecutor deliberately misstated the testimony of one of the eyewitnesses. He argues her conduct constitutes prejudicial misconduct. But his argument relies on documents that are not part of the record. It also fails on the merits.
Anderson testified that Tribble drove southbound on Cahuenga Boulevard on the wrong side of the road. Breathour said Tribble was headed southbound, ran a red light, collided with an Acura, and fled the scene. In her argument to the jury, the prosecutor said, "We have evidence from the following three people: Glen Breathour, Ryan Anderson and George Jackson. Let's break down what they told you." (Italics added.) She then stated facts from the testimony of Anderson and Breathour and said, among other things, that Tribble ran a red light.
The People concede that she should not have listed Jackson's name in this factual summary because he testified that he "didn't see where the car came from."
But the prosecutor's mistake could have been corrected had Tribble objected at trial. A minor error does not constitute misconduct. (People v. Guerra, supra, 37 Cal.4th at p. 1124.) The prosecutor's remarks about what Tribble did were consistent with other testimony, and the jurors were instructed that argument and comments of counsel are not evidence.
Tribble also claims Jackson committed perjury by testifying that he did not "see where [Tribble's car] came from" and the prosecutor knew it. He argues the falsity of his testimony is shown by a prior inconsistent statement he made in a police report. But that report was not admitted into evidence. It may not be used on appeal to show that a witness lied. (People v. Valdez (2004) 32 Cal.4th 73, 125-126.)
Tribble has recently filed a request that we take judicial notice of his statements in a police report. We deny the request. Tribble has not explained why this evidence was not introduced at trial. (People v. Ramos (1997) 15 Cal.4th 1133, 1155, fn. 2.) The attached documents were not certified by a custodian of records (People v. Medina (1990) 51 Cal.3d 870, 890), and the declaration does not include facts to excuse that requirement or to explain why this request was not initially filed in the trial court. (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1072; People v. Preslie (1977) 70 Cal.App.3d 486, 492, 495.) There is also no showing to establish the propriety of taking judicial notice of a witness statement. (Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1192 ["The declaration of an adverse party is not a proper subject for judicial notice"]; see also People v. Jones (1997) 15 Cal.4th 119, 172, fn. 17 ["we decline to take judicial notice of the truth or accuracy of an entry in a police report"], overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823.) Moreover, Tribble essentially seeks to add evidence. But the appellate rules relating to the content of the record "may not be circumvented by bringing in new evidence under the disguise of judicial notice." (E.M. Consumer Corp. v. Christensen (1975) 47 Cal.App.3d 642, 653.)
Yet, even so, a prior inconsistent statement does not, by itself, establish perjury. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1242 ["one cannot state a prima facie case of perjury or concealment simply by showing inconsistencies in the witness's testimony"].) Moreover, Tribble's current position is inconsistent with his position at trial. His trial counsel told the court, "There was no one that we claim was deliberately lying."
Tribble also suggests the prosecutor intended to conceal facts and introduce false evidence. But he has failed to cite to the record to make an adequate showing to support these claims (People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283; People v. Woods (1968) 260 Cal.App.2d 728, 731), and in his reply brief he concedes that there was testimony by Breathour supporting the prosecutor's claim that he ran a red light. His suggestion that there was prosecutorial concealment is not meritorious because the defense had the police reports at trial. (People v. Morrison (2004) 34 Cal.4th 698, 715.) In fact, when the prosecutor attempted to refresh Jackson's recollection with his statements to police, Tribble's trial counsel objected to the prosecution's attempt to use that report. Tribble has not shown prosecutorial misconduct. (People v. Guerra, supra, 37 Cal.4th at p. 1124; People v. Bemore (2000) 22 Cal.4th 809, 846; People v. Fierro (1991) 1 Cal.4th 173, 212-213.) Moreover, whether he ran a red light at one intersection is a relatively minor detail when compared to the massive body of evidence about his dangerous and deadly driving rampage which Tribble has not challenged on this appeal.
D. Prosecutor's Suggestion that Tribble Was Driving Under the Influence of Cocaine
Tribble contends that the prosecutor committed misconduct by circumventing the court's limiting instruction and improperly suggesting that he was driving under the influence of cocaine. He notes that while cross-examining Dr. Zackler, she asked, "[D]oes the fact that in the hospital, in the emergency room when he was brought in, that the defendant had the conscious ability to give a false answer to the question whether or not he had any cocaine in his system affect your opinion as to whether or not the defendant was delirious at the time he was driving?"
But Tribble did not object to this question at trial. The misconduct claim is consequently waived. But, even on the merits, the result does not change.
Tribble suggests that the prosecutor asked this question to suggest that Tribble was driving while under the influence of cocaine. But that is not the case. The question tested the validity of the defense theory that Tribble was delirious. The prosecution was showing that because Tribble had the ability to lie about whether he had used illegal drugs he was not unconscious or in a state of delirium. This did not circumvent the court's limiting instruction. Nor was the prosecutor trying to elicit a response that Tribble was driving while intoxicated.
Tribble suggests that the prosecutor improperly made references to cocaine in his system without any evidence to support it. But Dr. Pechman testified that Tribble had used cocaine. Moreover, the prosecutor's point was that Tribble had lied. The underlying issues involved Tribble's state of mind and his credibility. There was no misconduct.
E. Cross-Examining Catherine Tribble
Tribble claims that in cross-examining his mother, Catherine Tribble, the prosecutor asked argumentative questions to inflame the jury. We disagree. Mrs. Tribble was a defense witness who testified about statements Tribble made after he had been hospitalized. He told her that he had no memory about what had happened. She said Tribble had sleep apnea. The prosecutor asked whether Tribble told her that he had lied to his doctor and if he had mentioned the cocaine metabolite test.
Tribble contends there was no valid purpose for these questions. But Mrs. Tribble was called to support Tribble's amnesia and state of mind defense by using a selective portion of her son's self-serving statements after he was released from the hospital. The prosecution was trying to prove Tribble had made other statements that negated the defense and supported its case.
F. Argument about Tribble Lying to his Doctors
Tribble claims the prosecutor committed misconduct by stating, "When the defendant was caught, what the evidence shows is that he lied to doctors and he lied to police and tried to make up an excuse...." He argues that the prosecution improperly "trashed" his character and falsely accused him of "malingering." But there was evidence showing that Tribble lied about using illegal drugs. The prosecutor may ask jurors to draw reasonable inferences from the evidence. There was no misconduct. (People v. Hill, supra, 17 Cal.4th at p. 819.)
G. Eliciting Dr. Plotkin's Remark about Criminal Defendants
Tribble claims the prosecutor elicited the portion of Dr. Plotkin's testimony where he said that in his experience he found that criminal defendants "all end up being convicted." The trial court struck this testimony.
Tribble notes the prosecution may not encourage witnesses to interject inadmissible or prejudicial evidence. He claims the prosecutor invited this witness to make these remarks. But he has not cited facts from the record to support it. (People v. Dougherty, supra, 138 Cal.App.3d at pp. 282-283; People v. Woods, supra, 260 Cal.App.2d at p. 731.) We find nothing to support Tribble's contention. Before Plotkin made the statement, the prosecutor asked whether Tribble was in a "prednisone-induced delirium." Plotkin then volunteered the non-responsive answer about criminal defendants. The prosecutor's question did not invite that response.
VIII. Instructing a Juror Not to Discuss Her Prednisone Experience
Tribble claims the trial court erred by telling a trial juror that she should not talk to other jurors about her reaction to taking prednisone. We disagree. "'A jury's verdict in a criminal case must be based on the evidence presented at trial, not on extrinsic matters.'" (People v. Wilson (2008) 44 Cal.4th 758, 829.) It is misconduct for a juror to bring "outside evidence into the jury room" or inject "the juror's own expertise into the deliberations." (Ibid.)
After the first day of trial, juror No. 9 wrote a note to the trial judge stating that she "had a psychotic reaction to prednisone." The court instructed her not to discuss this experience with the other jurors. Tribble claims she should have been allowed to discuss it. But that would be improper. It could result in making her the unsworn expert in the jury room and encourage jurors to ignore the evidence. (People v. Wilson, supra, 44 Cal.4th at p. 829.)
IX. The Psychiatric Examination with the Prosecution's Psychiatrist
Tribble claims the trial court erred by compelling him to take a psychiatric examination with the prosecution's expert and then permitting the expert to testify.
In Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1116, our Supreme Court held that a "trial court's order granting the prosecution access to petitioner for purposes of having a prosecution expert conduct a mental examination is a form of discovery that is not authorized by the criminal discovery statutes or any other statute, nor is it mandated by the United States Constitution." In Verdin, the defendant opposed a prosecution motion to require him to submit to a mental examination by a prosecution expert.
Verdin establishes that a defendant may not be compelled to take the examination. But it does not preclude the defense and prosecution from entering into agreements. The People contend that, although Tribble's counsel initially opposed the examination, they subsequently made an agreement with the prosecutor that Tribble would take the examination subject to conditions required by the defense. The People argue that the examination was not the result of compulsion, but rather an agreement between counsel. We agree.
On June 27, 2007, the prosecution filed a motion "to appoint a mental health expert to examine" Tribble and requested that Dr. Plotkin conduct the examination. Tribble's counsel opposed it stating, "[T]his case does not involve specific mental states for which a prosecution exam is authorized," and they alternatively requested a protective order.
At the hearing the trial court announced that counsel had settled the matter. "We took an agreement. ... The agreement... is that the defendant will go outside of the legalprocedure and allow himself to be interviewed concerning this mental defense and that, in exchange for that, the defense will receive" a report from the prosecution's psychiatric expert prior to trial, and the examination will take place in the office of defense counsel. (Italics added.)
The trial court indicated that the agreement was the only basis for permitting this examination; it was apparently aware of the Verdin issue. It said this examination was otherwise "outside of the legal procedure." It was agreed that Tribble's counsel would be present during the psychiatric interview.
Tribble claims the examination was not voluntary because the prosecutor initiated the process to obtain it. But Tribble's counsel told the court that they ultimately decided not to oppose the examination.
Did the Agreement Contravene Tribble's Fifth Amendment Rights?
Tribble suggests that the agreement to take the psychiatric examination with the prosecution's expert contravened his Fifth Amendment rights against self-incrimination. We disagree. The agreement was negotiated by his counsel. Constitutional rights may be waived by agreement. (People v. Rios (1992) 9 Cal.App.4th 692, 703.) A defendant generally may not claim a violation of a constitutional right, if his or her counsel agreed to waive it. (People v. Davis (2005) 36 Cal.4th 510, 567.) There is also a rebuttable presumption of the waiver of the right against self-incrimination where, upon counsel's advice, the defendant answers questions in a criminal proceeding. (People v. Vargas (1987) 195 Cal.App.3d 1385, 1394; People v. Thomas (1974) 43 Cal.App.3d 862, 867.) Tribble has not cited sufficient facts from the record to rebut that presumption.
Tribble states that, notwithstanding what his counsel negotiated, the court had a duty to advise him of his Fifth Amendment rights. He claims it "never took a waiver directly from [him]" to allow the examination. "Although the fifth amendment normally bars the government from subjecting the defendant to a psychiatric examination without warning him of his constitutional rights, that bar is waived once the defendant introduces psychiatric evidence in support of a mental defense." (Hendricks v. Vasquez (9th Cir. 1992) 974 F.2d 1099, 1108; see also Powell v. Texas (1989) 492 U.S. 680, 684.) Tribble introduced such evidence. Moreover, an advisement is not required where the psychiatric examination was not conducted in a "custodial" setting and the defendant was represented by counsel. (People v. Haskett (1990) 52 Cal.3d 210, 243; People v. Thomas, supra, 43 Cal.App.3d at p. 867; In re Spencer (1965) 63 Cal.2d 400, 410.) Tribble's counsel were present during the psychiatric interview. This provided him protection against self-incrimination. (People v. Ledesma (2006) 39 Cal.4th 641, 698; Spencer, at p. 410.)
Tribble suggests that his responses to the expert's questions were coerced. We disagree. The examination took place in the protected environment of his lawyer's office and was conducted under conditions negotiated by his counsel. His attorneys were present and could object to any questions that were coercive, unfair or incriminating. The agreement required the prosecution's expert to deliver a report about his findings to Tribble's counsel. This gave his attorneys the opportunity to move to exclude portions of the assessment or areas of testimony that could be incriminating before trial. Tribble claims his counsel were ignorant of the Fifth Amendment implications of this examination. But he has not shown from this record that that was the case or that they had compromised his Fifth Amendment rights by not objecting to questions that incriminated him. (People v. MendozaTello (1997) 15 Cal.4th 264, 267; United States v. Halbert (9th Cir. 1983) 712 F.2d 388, 390; United States v. Madrid (10th Cir. 1982) 673 F.2d 1114, 1121.)
X. Ineffective Assistance of Counsel
Tribble claims he received ineffective assistance of counsel because his trial lawyers agreed to allow the prosecution's psychiatric expert to examine him. Ineffective assistance is established by showing "that counsel's performance was deficient" and "the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687.)
Tribble claims his trial counsel were ineffective because: 1) they did not know that he "was not required to submit, under any circumstances, to a psychiatric examination," or 2) "[i]f they were aware... they were incompetent for failing to object to the prosecution's psychiatric expert examination."
Tribble's counsel made the agreement for Tribble to take the examination in 2007. The Supreme Court decided Verdin in 2008, but it granted review in 2006. The validity of these examinations was a hotly contested but unresolved issue in 2007. "Clairvoyance is not a required attribute of effective representation." (Nelson v. Estelle (5th Cir. 1981) 642 F.2d 903, 908.) "[C]ounsel is normally not expected to foresee future new developments in the law...." (Ibid.) But a defendant also has the right to expect that counsel will be aware of important issues that may directly impact the case. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1094, fn. 8; Pineda v. Craven (9th Cir. 1970) 424 F.2d 369, 372.)
Whether Tribble's counsel knew about the Verdin issue is an open question. Their trial court opposition brief did not mention the Verdin case, the Verdin issue, or that Verdin was pending for review in the Supreme Court. There is nothing in the record about counsel's knowledge on this issue.
Tribble suggests that their decision to settle with the prosecutor, instead of objecting, could not be based on any valid strategy. Of course, "[t]here is nothing strategic or tactical about ignorance...." (Pineda v. Craven, supra, 424 F.2d at p. 372.) But the record does not indicate whether they settled, because: 1) they assumed that Tribble had to consent based of their lack of knowledge about the Verdin issue; 2) they were aware of the issue but predicted a different outcome; or 3) after considering the issue and weighing the relevant factors, they thought that the agreement was appropriate regardless of how the Supreme Court would later rule on the issue.
The People claim that we may reject the ineffective assistance claim because Dr. Plotkin did not obtain information in the examination that assisted the prosecution. But responses by Tribble were relied on by Plotkin to assist him in testifying that Tribble had no psychotic symptoms. Yet, even so, the record is incomplete regarding what counsel knew. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)
XI. Substantial Evidence
Tribble contends the evidence is insufficient to support his conviction for second degree murder. We disagree. In deciding the sufficiency of the evidence, we draw all reasonable inferences from the record to support the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We do not weigh the evidence or decide the credibility of the witnesses. (Ibid.)
Tribble claims that evidence does not satisfy the two elements required for a conviction of second degree murder. A conviction for this offense is appropriate "when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created." (People v. Watson (1981) 30 Cal.3d 290, 298.)
Tribble cites to a few portions of the record and claims the evidence does not meet the Watson standard. But the issue is not whether some evidence supports the defense, it is whether substantial evidence supports the judgment. Because he has failed to cite to the evidence in the record that supports the judgment, this argument is waived. (People v. Dougherty, supra, 138 Cal.App.3d at pp. 282-283.)
But, even so, Anderson's and Breathour's testimony shows that Tribble started his dangerous journey by driving on the wrong side of the road, running a red light, hitting a vehicle and then fleeing the scene. Anderson testified that Tribble was "driving very crazily." After Tribble hit the first vehicle, he "gunned" the motor, accelerated, and was "swerving onto the wrong side of the road." Breathour said that after Tribble fled the scene of the first collision, he drove directly into oncoming traffic at a speed of 80 miles an hour. The jury could reasonably infer that Tribble was driving in a deliberate and conscious manner because he was "zigzagging" around cars that were in front of him.
Tribble collided with a second car. Velasquez testified that Tribble drove towards him and was driving on the wrong side of the road. He sideswiped Velasquez's vehicle, did not stop, fled and continued to drive on the wrong side of the road. Tribble then drove down the hill, hit another vehicle, and "kept going." Velasquez said Tribble was "driving is like he's running away from something." Tribble drove directly towards Entine on the wrong side of the road at "double [the] speed limit." Entine had to swerve to the right to avoid being hit. Tribble eventually hit Schmitke's vehicle. Schmidke died from the injuries he sustained in the collision.
From this evidence jurors could reasonably infer that Tribble had a wanton disregard for life and acted deliberately. From his selective memory in the police interview, and his lie about not using illegal drugs to his doctor, the jury could infer that Tribble was conscious, had a consciousness of guilt, and his delirium defense was not credible. The evidence is sufficient.
XII. Sua Sponte Jury Instructions
Tribble claims that the trial court erred by failing to give sua sponte instructions to the jury on several issues.
A. False Statement and Consciousness of Guilt
Tribble notes that the claim that he made a false statement to his doctor, which constituted a consciousness of guilt, was an issue raised by the prosecution. He claims the court erred in not giving instructions on this issue.
But that is not the case. The court gave specific instructions at the request of the defense about Tribble's out-of-court statements. It gave a limited purpose instruction to assist the jury on the issue of Tribble's credibility during the time he was answering questions about illegal drug use at the hospital (Instruction No. 303) and a standard CALCRIM No. 358 instruction (evidence of defendant's statements). Tribble has not demonstrated why these instructions taken together were inadequate. His trial counsel participated in drafting Instruction No. 303.
Tribble claims the court should have given a CALCRIM No. 362 consciousness of guilt instruction. But the prosecution requested that instruction. At trial, however, Tribble's counsel objected and claimed it would prejudice Tribble. At the suggestion of Tribble's counsel, the court withdrew CALCRIM No. 362. Because counsel apparently had a tactical reason for withdrawing it, Tribble may not now claim error. Because the court relied on his counsel's representations, the invited-error doctrine applies. (People v. Hinton (2006) 37 Cal.4th 839, 868, fn. 10.)
B. Circumstantial Evidence
Tribble claims the trial court erred by not adequately instructing the jury on the inferences to be drawn from circumstantial evidence. We disagree. At the request of the defense and the prosecution, the court gave CALCRIM No. 225 (circumstantial evidence: intent or mental state). It provides, in relevant part: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent and/or mental state, you must be convinced that the only reasonable conclusion supported by circumstantial evidence is that the defendant had the required intent and/or mental state."
Tribble claims the court erred by not giving a CALCRIM No. 224 instruction. But Tribble's counsel told the trial court that the only instruction that was relevant or appropriate was CALCRIM No. 225. Given this representation, Tribble may not claim error. (People v. Hinton, supra, 37 Cal.4th at p. 868, fn. 10.) But, even so, CALCRIM No. 225 provides the jury with specific guidance regarding the appropriate standards they must use to evaluate circumstantial evidence. (People v. Golde (2008) 163 Cal.App.4th 101, 118.) A main issue involved the use of circumstantial evidence to infer intent or mental state. The instruction guides the jury in evaluating the facts involving these issues. It protects Tribble by limiting the inferences jurors may draw and requiring the prosecution to meet an elevated standard when it relies on such evidence. Tribble has shown neither error nor prejudice.
C. Definition of Metabolite
Tribble claims that because there was no expert testimony on the definition of metabolite, the court committed reversible error by not giving an instruction explaining what it was. But his argument is based on an erroneous premise. Tribble called David Glaser, M.D., a UCLA professor of forensic psychiatry, as an expert. Glaser testified about the definition of metabolite. Tribble does not claim that Glaser was unqualified or that any reasonable juror would be confused by his testimony. Nor has he shown that there was any dispute about the definition of metabolite that required an instruction.
But, even if the court erred, reversal is not required unless there is "demonstrable prejudice from its omission." (People v. Holt (1997) 15 Cal.4th 619, 689.) Here the definition was provided by the defense expert. Moreover, the presence or absence of the instruction would not change the result. The critical factor was not the definition, but that Tribble had the substance in his system, which established his use of illegal drugs and his lie to Dr. Pechman. Tribble has not shown reversible error.
D. CALCRIM No. 358
Tribble argues that the court erred by giving a CALCRIM No. 358 (Evidence of Defendant's Statements) standard jury instruction without adding additional language. The instruction provides, "You have heard evidence that the defendant made oral or written statements before the trial. You must decide whether or not the defendant made any such statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements. [¶] You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded."
Tribble claims CALCRIM No. 358 should have been modified to add additional language. But modification of a standard CALCRIM instruction must be initiated at trial. (People v. Geier (2007) 41 Cal.4th 555, 579.) A defendant may not, as here, tell the trial court that the instruction is proper and then, for the first time on appeal, claim additional language is required. (Ibid.)
But the argument also fails on the merits. Tribble suggests additional language was necessary so jurors would scrutinize the facts to determine whether he made the admissions and decide the weight to be given to them. But that is the purpose of CALCRIM No. 358. It requires jurors to view the evidence of a defendant's out-of-court admissions with caution. (People v. Wilson (2008) 43 Cal.4th 1, 19; People v. Ramos (2008) 163 Cal.App.4th 1082, 1091.) It provides that jurors must not consider such evidence in isolation and the weight is a matter for the jury.
Moreover, Tribble has not shown prejudice. There was no factual dispute about what Tribble told police. The statements were recorded. The reliability of Dr. Pechman's testimony was high as he was documenting Tribble's answers for his medical history. The medical testimony and medical records were compelling evidence showing that Tribble had lied when he denied taking illegal drugs.
XIII. Lay Opinion Testimony
Tribble claims that the trial court erred by allowing lay witnesses to express prejudicial opinions. He notes that Entine testified, "I thought... this guy [was] going to kill somebody for sure." "A lay witness may testify to an opinion if it is rationally based on the witness's perception and if it is helpful to a clear understanding of his testimony." (People v. Farnam (2002) 28 Cal.4th 107, 153.)
Tribble claims Entine's comments were improper lay witness speculation. But Tribble did not object on this ground at trial. He consequently waived this claim. (People v. Farnam, supra, 28 Cal.4th at p. 153.) But, even so, he has not shown prejudice. Entine said he had to pull to the right to avoid a head-on collision. His remark that Tribble was "going to kill somebody" is the way most people would describe the actions of a person driving on the wrong side of the road. A reasonable juror would understand that and consider the remark in that context. Moreover, the only reasonable inference from the way Tribble was driving is that he was likely to kill someone. (Bartlett v. State of California (1988) 199 Cal.App.3d 392, 400-401 [even if the opinion should have been excluded there was no reversible error as the underlying facts would ultimately lead to the same result].)
We have reviewed Tribble's remaining contentions and conclude he has not shown reversible error.
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.