P. v. Fredricksen

Filed 3/6/07 P. v. Fredricksen CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

A jury found defendant Kelly Fredricksen guilty of first degree murder and found that he was lying in wait and used a deadly weapon in committing the murder. The trial court sentenced him to life in prison without the possibility of parole, with an additional year for the weapon enhancement.

On appeal, defendant contends: (1) the trial court deprived him of his federal constitutional rights by improperly restricting the testimony of his psychology expert; (2) the prosecutor committed misconduct by misleading the jury about the law of manslaughter; (3) the trial court erred in denying his new trial motion based on newly discovered psychological test results; and (4) the lying-in-wait special circumstance is unconstitutionally overbroad and constitutes cruel and unusual punishment under the facts of this case.

Finding no merit in defendants arguments, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The victim, Ron Bailey, and a friend, Ed Gomez, went to defendants apartment to buy some drugs from another individual, Emanuel Lapuste. Shasta Flotka, who was living with defendant at the time, recognized Bailey and later told defendant that Bailey had drugged and raped her sister.

Later, Lapuste called Gomez and asked Gomez to give him and defendant a ride. Gomez and Bailey then picked up Lapuste and defendant, and Gomez followed Lapustes instructions and drove to a wooded area outside Oroville. They pulled off the road onto a dirt driveway, then got out of the car and began walking up the driveway at Lapustes direction. Eventually, defendant told them they had gone far enough, and they stopped to smoke. As Gomez was lighting Baileys cigarette, defendant suddenly attacked Bailey with a knife.

Defendant stabbed Bailey at least 27 times, and Bailey died from blood loss from multiple penetrating stab wounds to his chest and head.

Defendant testified at trial that he was overwhelmed with anger because of what Shasta told him and because he believed Bailey had touched his daughter when Bailey was in his apartment. Defendant claimed he planned only to assault [Bailey] with a deadly weapon, cut off his penis or stab him in the penis, but did not think about killing him. Once he punched Bailey, however, he just snapped and began to stab Bailey. Later, defendant and Lapuste went back and moved Baileys body into the brush, and later still defendant returned, dragged the body back into the road, and attempted to cremate it with gasoline and matches.

Defendant argued the jury should convict him of voluntary manslaughter, but the jury rejected that argument and convicted him of first degree murder with the special circumstance of lying in wait.

DISCUSSION

I

Limitations On Defense Experts Testimony

A

Penal Code Section 29

Before trial, the prosecution moved in limine to preclude a defense psychologist, Dr. Stephen Pittel, from testifying to any conclusions, opinions, or inferences regarding [defendant]s state of mind either leading up to or when [defendant] killed . . . Bailey.^[1] The basis for the motion was Penal Code section 29, which provides that [i]n the guilt phase of a criminal action, any expert testifying about a defendants mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.

At the hearing on the motion, the trial court stated the issue has come up more than once before me and Ive always taken the position that Dr. [Pittel] can only testify to generalities. The court explained that Dr. Pittel could not give an opinion as to whether at the time of the incident [defendant] was or was not acting with a specific mental state [b]ut he could testify to a diagnosis, and what the ramifications of that diagnosis are. The court later explained that Dr. Pittel could express his diagnosis of defendant and express an opinion as to the way people act that have that diagnosis, but he cant testify to the ultimate question of fact that the jury is going to be asked to decide, and that is the motivating factors involved at the time of the fatal acts. The court also stated that Dr. Pittel could testify to a hypothetical person, and then it would be up to the jury to decide whether [defendant] was acting consistently in the same manner as that hypothetical person.

During the defense case, Dr. Pittel testified generally about the manifestations and consequences of child molestation, including testimony that underlying issues of anger and rage are [a]lmost always associated with early molestation. Dr. Pittel testified that many things can trigger this anger or rage, and then turned to defendant specifically. In the midst of that testimony, the prosecutor objected that Dr. Pittel was going to [defendant]s state of mind, which hes not allowed to do. When the court asked defense counsel to rephrase or ask another question, counsel requested a bench conference. At that conference, defense counsel asserted he did not anticipate Dr. . . . Pittel talking about the state of mind at the time of the incident. The court cautioned counsel that Dr. Pittel could speak in general terms about feelings of anger and rage in general, created by [defendants] early childhood experiences, but the triggers for it, thats another matter. Defense counsel asserted that he could ask [Dr. Pittel] whether certain events could have triggered -- but the trial court interrupted with, Not that it actually did in his life. Defense counsel said, Okay, and Dr. Pittels testimony resumed.

Defense counsel then asked Dr. Pittel about the situations that could have triggered rage [in defendant] that was stored in him from earlier molestation. Dr. Pittel testified without objection that confrontation with . . . someone who he knew as a molester, particularly if he knew that person had molested someone [who] he felt close to, or that he had some feelings of protectiveness toward could have provoked this anger or rage. He then testified that confrontation with the person who had molested him would have provoked that. However, when he testified that he had asked defendant how he would feel if he confronted that person today, the trial court sustained an unspecified objection from the prosecutor, and the prosecutor admonished Dr. Pittel that he could not talk about defendants state of mind. Dr. Pittel responded that he wasnt talking about the defendants state of mind, but only saying that a confrontation between defendant and his molester probably would have evoked a very strong emotional reaction. The prosecutor objected to the word probably, and the trial court sustained the objection, explaining, We are dealing with the world of might or could here. Dr. Pittel responded, My answer was intended to be a hypothetical, and the court instructed defense counsel to proceed.

Dr. Pittel then testified about defendants strong need to be loved, or affect hunger, and how it could have contributed to his state of mind on the date of the incident in the strongly protective attitude that he held toward Shasta. He also testified about defendants relationship with his daughter and his methamphetamine use. He then testified about kindling, a term he had used to try[] to find a way to describe how the sequence of events in this case might have affected [defendant]. When he testified there was a fuse that was ignited by a number of different things that occurred, the prosecutor objected on the ground he was obviously implying the defendant. The trial court sustained the objection. Defense counsel asked, Could have? and Dr. Pittel said, Yes. I am not saying this did happen. I was trying to find a metaphor to explain how the sequence of events might have or could have affected [defendant] on this occasion. He then testified that the fact of the molestation and the consequences of that, both at the time and thereafter, coupled with the perceived danger to his daughter, the revelations from Shasta about Mr. Baileys history of molestation of her sister, that this could have ignited a fuse that was already ready to go, and that had been dormant for a long time.

Defense counsel then asked Dr. Pittel about the concept of overkill. When Dr. Pittel testified that wounds to the face usually indicate there is personal animosity between the perpetrator and the victim, while [w]ounds to the body represent a more generalized rage toward a class of individuals, the prosecutor objected, asking, Is he speaking hypothetically, or just referring to this case, I believe? Dr. Pittel said he was speaking hypothetically only, and the court instructed him to [s]peak generally, which he did.

Based on the foregoing incidents and rulings, defendant argues the trial court seriously misapplied Penal Code section 29 to such an extent as to restrict and dilute Dr. Pittels testimony to vague generalizations about hypothetical people in the abstract, which he contends severely intruded on [his] federal constitutional right to present a defense. According to defendant, rather than restricting Dr. Pittel to testifying to an abstract proposition that a certain set of factors may have had an effect on a hypothetical person, Dr. Pittel should have been allowed to testify how the relevant factors likely did affect [defendant in] particular. Defendant further insists that Dr. Pittel should have been permitted to give his opinion as to what was actually going on in [defendants] mind on the night of the [stabbing], with respect to Baileys sexual molestation activities triggering strong emotional reactions on [defendants] part.

We disagree with defendant that the trial court restricted Dr. Pittels testimony to vague generalizations about hypothetical people in the abstract. Dr. Pittel was not prohibited from discussing defendant in particular. For example, as we have noted, Dr. Pittel was specifically allowed to testify about the various factors particular to defendant that could have ignited a fuse at the time of the killing. Dr. Pittel later confirmed that he believed he had covered all of the conditions that exist that could have affected [defendant]s state of mind at the time of the killing.

The nature of the trial courts rulings was to preclude Dr. Pittel from testifying as to what actually did happen or probably happened in defendants mind on the day of the incident -- as opposed to what could have happened. Thus, when defense counsel insisted that he could ask [Dr. Pittel] whether certain events could have triggered anger or rage in defendant, the trial court did not disagree; the court merely insisted that Dr. Pittel could not testify that certain events actually did trigger anger or rage in his life. Similarly, when Dr. Pittel testified there was a fuse that was ignited by a number of different things that occurred, the trial courts sustaining of the prosecutions objection led defense counsel to ask whether there was a fuse that [c]ould have ignited what occurred, and Dr. Pittels testimony about what might have or could have affected [defendant] on this occasion was admitted without objection. And when Dr. Pittel testified that a confrontation between defendant and his molester probably would have evoked a very strong emotional reaction, the court sustained the prosecutors objection to the word probably and told Dr. Pittel, We are dealing with the world of might or could here.

As to this aspect of the courts ruling, defendant complains that [w]hat the jury heard was that it may have been a possibility; what they should have heard was Dr. Pittels opinion that it very likely did affect [defendants] ability to premeditate and deliberate. Even if we assume for the sake of argument, however, that defendant is correct in asserting Dr. Pittel should not have been precluded from testifying to the likelihood of how certain factors influenced defendants mental processes, rather than the mere possibility of such influence, with only one exception, there is no showing in the record that Dr. Pittel would have testified in terms of likelihood had he been allowed to do so. (See Evid. Code, 354, subd. (a) [judgment cannot be reversed based on erroneous exclusion of evidence unless [t]he substance . . . of the excluded evidence was made known to the court].) If defense counsel believed his witnesss anticipated testimony was being unduly restricted by the courts ruling that Dr. Pittel could testify only to what could have affected defendants mental processes, he was obliged to make a record of what Dr. Pittels testimony would have been absent the restriction, but he did not do so. Accordingly, on the record now before us, we have no way of knowing whether Dr. Pittel would have testified with greater certainty had he been allowed to do so.

The one instance where the record is adequate is when Dr. Pittel testified that a confrontation between defendant and his molester probably would have evoked a very strong emotional reaction, and the trial court sustained the prosecutors objection to the word probably, telling Dr. Pittel, We are dealing with the world of might or could here. This incident is of little significance, however. Because this case did not involve a confrontation between defendant and his molester, it does not matter whether such a confrontation probably would have or only could have evoked a strong emotional reaction in defendant. The trial courts limitation of this immaterial evidence did not prejudice defendant.

Having concluded defendant has failed to show any reversible evidentiary error in the trial courts ruling on the scope of Dr. Pittels testimony under Penal Code section 29, we likewise conclude defendant has failed to show any error of federal constitutional magnitude.

B

Corroborating Evidence

During cross-examination, Dr. Pittel testified that he had been able to corroborate all of the . . . essential details to which [he] testified except for information having to do with [defendant]s use of methamphetamine in the days prior to [the incident], and the depression that he experienced after breaking up with a girlfriend. When the prosecutor asked specifically about his inability to corroborate defendants methamphetamine use, Dr. Pittel responded: Other than his statement to that effect, I have no evidence. I have not read the transcript of an interview that [defense counsel] and his investigator had with Mr. Lapuste, who I believe corroborate . . . . The prosecutor interrupted, asking for a bench conference. At that conference, the court stated, Cant have any references to Mr. Lapuste here. The prosecutor complained he had not been provided with any witness statement of Lapuste, and when asked if there were any, defense counsel responded, We usually had to provide statements when we call somebody as a witness. Noting that Lapuste was not a witness, the court ruled [a]ny information he supplied should not be considered. Defense counsel suggested Dr. Pittel should be able to refer to Lapuste in responding to the prosecutors question about corroboration, but upon the prosecutors continued assertion that he had not been provided with any statement from Lapuste, the court ruled, I think we should stay clear of any information regarding Lapuste. Defense counsel responded, All right.

Later, the subject of corroboration arose again when, in responding to a question about whether a criminal defendant in a case has a motive, a self[-]interest in whatever he says to you, Dr. Pittel responded, Sure. Thats why corroboration is so important. The prosecutor then asked if Dr. Pittel, in his report, had corroborated what [defendant told him] about what happened to Ron Bailey. Dr. Pittel initially expressed uncertainty about what aspects of it [the prosecutor was] referring to, but then responded, [Defendant] acknowledged that he stabbed Mr. Bailey. He described the circumstances. I gather from the bench conference that was held that I cant speak to certain information that I have, but . . . . The prosecutor interrupted, telling Dr. Pittel he could not refer to anything Mr. Lapuste has said. Dr. Pittel responded, I wont refer to it specifically, other than to say that my understanding is that his account was in accord with the information that I received from [defendant]. The prosecutor asked, Mr. Lapustes account of what happened to Mr. Bailey? and defense counsel interjected, Hold on, judge. We either can or cant. The court then admonished the jury to disregard any information that came from the mouth of Mr. Lapuste.

On appeal, defendant contends the trial court erred in refusing to permit Dr. Pittel to refer to the statement of Emanuel Lapuste that corroborated the statement he had received from [defendant]. Defendant further contends this error deprived him of his federal constitutional rights to due process, a fair trial, and to present evidence. Defendant is wrong on both counts.

Defendants assertion of error is based on the premise that an expert witness is allowed to testify about the matter on which his opinion is based, even if that matter would otherwise be inadmissible. (See Evid. Code, 801, 802.) While that principle is generally true, it does not apply to any statement by Lapuste because Dr. Pittel did not base his opinion on

any such statement. Indeed, Dr. Pittel specifically admitted that he ha[d] not read the transcript of [the] interview

that [defense counsel] and his investigator had with Mr. Lapuste . . . . Dr. Pittels opinion could not have been premised on a statement he never read. Thus, defendant has failed to show any error in the trial courts ruling regarding Lapuste. It follows that, having failed to show any error, defendant has necessarily failed to show any error of federal constitutional magnitude.

II

Prosecutorial Misconduct

On appeal, defendant complains about various statements the prosecutor made in his closing argument, which defendant asserts amounted to misstatements about the law of manslaughter. The People contend defendant forfeited this claim of prosecutorial misconduct by failing to object in the trial court. (See People v. Najera (2006) 138 Cal.App.4th 212, 224 [To preserve for appeal a claim of prosecutorial misconduct, the defendant must make a timely objection at trial and request an admonition to the jury. [Citation.] A defendant is excused from the necessity of objecting and requesting an admonition if either would have been futile].)

Defendant does not contend an objection and/or request for an admonition would have been futile here. Instead, he argues for the first time in his reply brief that his trial counsels failure to object amounted to ineffective assistance of counsel. [A] point raised for the first time [in a reply brief] is deemed waived and will not be considered, unless good reason is shown for failure to present it before. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) No good reason has been shown here. Accordingly, we decline to consider that argument.

At the end of his prosecutorial misconduct argument, defendant summarily asserts that the trial court erred by giving a patently erroneous response to a question from the jury about evaluating the defendants ability to clearly and carefully consider his actions. This point . . . is waived by failure to brief it properly under a separate heading.^[2] (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1228.)

III

Denial Of New Trial Motion

Defendant moved for a new trial in part on the ground that [n]ewly discovered evidence developed through psychological testing for purposes of a sentencing memorandum demonstrates that defendant has a mental disability and dysfunction that

would have rendered it highly likely that he remained in a heat of passion between the time of his confrontation with the decedent at his home and the time of the homicide[]. Defendant contended he could not with reasonable diligence have presented this evidence at trial, because neither counsel nor Dr. Pittel were aware of any particular aspect of [defendant]s past behavior or current mental state presentation that suggested a need for psychological testing with respect to the guilt phase defense. Defendant admitted, however, that he could have insisted that Dr. Pittel administer psychological tests in anticipation of the guilt phase.

The trial court denied the new trial motion on this ground, ruling that the results of the psychological testing were evidence that with reasonable diligence could have been prepared and presented at the time of trial and that, in any event, the evidence did not indicate that a different result in the case [wa]s probable.

On appeal, defendant contends the trial court erred in denying his new trial motion based on the newly discovered psychological testing results. We disagree.

The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. (People v. Delgado (1993) 5 Cal.4th 312, 328.) One of the factors a trial court must consider in ruling on a motion for new trial based on newly discovered evidence is whether the party could not with reasonable diligence have discovered and produced [that evidence] at the trial. (Ibid.)

Defendant contends he could not, with reasonable diligence, have discovered and produced the psychological testing results at trial because neither his trial counsel nor Dr. Pittel was aware of anything that suggested a need for psychological testing with respect to the guilt phase defense. He further contends that if reasonable diligence required such testing in this case, then there would be a mandatory obligation on trial counsel to conduct psychological testing on their clients for the guilt trial in every case.

We are not persuaded. The newly discovered evidence on which the new trial motion was based were the results of two common psychological tests -- the Rorschach inkblot test and the California psychological inventory -- that revealed defendant has a particular psychological problem . . . basically called a coping deficit index, which refers to the ability of a person, to cope, to make decisions in the face of stress. According to Dr. Pittel, this problem made defendant particularly vulnerable to the stressors that led him to kill Bailey and essentially made it impossible for him to cool off. Obviously such test results were relevant to defendants contention that he was guilty only of voluntary manslaughter because he acted in the heat of passion. Given this fact, defendants explanation for why the psychological tests were not conducted before trial falls short of showing that the test results could not have been obtained in the exercise of reasonable diligence.

Dr. Pittel testified [t]here was no reason to conduct these tests before trial because he believed his understanding of [defendant]s developmental history, coupled with the events of that evening, more than sufficiently explained why he behaved as he did that evening and because there was nothing about his behavior or about his acts that evening that led [Dr. Pittel] to suspect that he was suffering from any diagnosable mental illness that contributed to the crime. Dr. Pittel did not explain, however, why he did not consider the use of psychological tests to determine whether defendant suffered from a psychological problem amounting to something less than a diagnosable mental illness that might be relevant to defendants claim he acted in the heat of passion. Defendant did not offer any evidence suggesting it is standard practice not to conduct psychological tests in preparing for a manslaughter defense in a murder case, or any evidence suggesting that the particular test results in this case were so unexpected that the possibility of their occurrence could not have been reasonably anticipated.

In short, on the facts of this case, there was no manifest and unmistakable abuse of discretion in the trial courts determination that the psychological testing results could, with reasonable diligence, have been discovered and produced at the trial. Accordingly, the trial court did not err in denying defendants new trial motion.

IV

Lying-In-Wait Special Circumstance

A

Overbreadth

Defendant contends the lying-in-wait special circumstance is unconstitutionally overbroad because it encompasses virtually any intentional murder that is not accompanied by a formal challenge to a duel or other overt notice to the intended victim.^[3] We disagree.

The lying-in-wait special circumstance requires proof of an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. (People v. Jurado (2006) 38 Cal.4th 72, 119.) Obviously, these elements -- concealment of purpose, a substantial period of watching and waiting, and an immediate surprise attack -- are not identical to the elements of intentional murder (as defendant now argues) or even to the elements of premeditation and deliberation in first degree murder (as defendant argued in the trial court). Accordingly, there is no constitutional infirmity in the special circumstance.

It is also worth noting that the only authority defendant cites in support of his argument -- Justice Kennards concurring opinion in Jurado -- supports our conclusion instead. Indeed, in Jurado, Justice Kennard specifically concluded the lying-in-wait special circumstance satisfies the federal Constitutions narrowing requirement for a death-eligibility factor because it applies only to a subclass of murderers, not to all murderers. (People v. Jurado, supra, 38 Cal.4th at p. 146.)

B

Cruel Or Unusual Punishment

Defendant asserts the application of the lying-in-wait special circumstance here violated the state constitutional prohibition against cruel or unusual punishment. (Cal. Const., art. 1, 17.) He cites the relevant legal standard, but instead of offering any argument applying that standard to the facts of this case, he merely asserts that [t]rial counsel made a persuasive case for striking the special circumstance as

imposing an excessive and unconstitutional punishment, and then cites two pages of the reporters transcript.^[4]

This is not a proper appellate argument. When a party fails to brief an argument, instead purporting to incorporate arguments made before the trial court, [w]e do not consider such arguments on appeal. (Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 334.)

Even if we consider the portion of the record defendant cites, we find the argument insufficient. Trial counsel asserted only that defendant did not exhibit the same vicious or aggressive characteristics as almost all of the 25 or 30 other murder defendants he had represented, and that in light of [the] nature of the charges, with a lack of any significant record, a very minimal record, certainly no aggressive type behavior, and the circumstances of this case, the court should strike the special circumstance. This cursory and conclusory argument is not the persuasive case for striking the special circumstance defendant contends it is. In short, we are not persuaded defendants sentence based on the special circumstance is either cruel or unusual. Accordingly, we find no error.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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^[1] This motion was apparently triggered by the fact that, in his report, Dr. Pittel concluded defendants killing of Bailey was an uncharacteristic act of impulsive and irrational violence.

^[2] We do note, however, that the record reflects defense counsels express agreement to the trial courts response to the jurys question, as well as the fact that the response was carefully hammered out by the court and counsel after lengthy discussion of the issues.

^[3] Defendant is correct in asserting he made this argument in the trial court; however, his reference to the record in support of this assertion is not entirely accurate. In his brief, defendant cites only to a brief portion of an argument on his motion for new trial, in which he vaguely raised this issue in the course of arguing that imposition of punishment for the lying-in-wait special circumstance would violate the constitutional prohibitions against cruel or unusual punishment. If that had been the only time defendant raised the issue, it would have been inadequately raised. Defendant, however, directly presented this issue to the trial court in a pretrial motion to set aside the information, and the court rejected the argument at that time.

^[4] Again, defendant is correct in asserting he made this argument in the trial court, but his reference to the record is not entirely accurate. He cites a brief portion of the oral argument on his new trial motion, but ignores the written motion where that argument was developed more fully.