P. v. King
Filed 6/20/13 P. v. King CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
KEITH HALLAN KING,
Defendant and
Appellant.
H037401
(Santa Clara
County
Super. Ct.
No. CC594125)
Defendant
Keith Hallan King appeals after a jury found him guilty of
he had five prior convictions that qualified as strikes (§ 667, subds. (b)-(i))
and as serious felonies (§ 667, subd. (a)). He was sentenced to an determinate term of 29
years, consecutive to an indeterminate term of 25 years to life.
On appeal,
defendant contends: (1) he should have
been permitted to change his plea to not guilty by reason of insanity; (2)
there was no corpus delicti for two of the three theories of burglary; (3) the
victim’s 911 call should not have been admitted; (4) the prosecution should not
have been permitted to amend the information during trial; (5) a defense
expert’s testimony was improperly limited; (6) the prosecutor committed
properly answer a jury question; (8) there was cumulative prejudice; and (9)
the trial court erred by denying his motion to dismiss the strike allegations.
For reasons
that we will explain, we will affirm the judgment.
I. BACKGROUND
A. The Burglary
On June 6, 2005, Lorena Wright lived on Grey
Ghost Avenue in San Jose
with her husband and three-month-old daughter.
Wright’s husband had gone to work at about 5:30
a.m. that day.
At about 6:00 a.m., Wright was awakened by a noise. She went into her dining room, carrying the
baby, and saw defendant outside her house.
Defendant was trying to take the screen off a window and was talking to
himself. Wright called 911.
Wright told
the 911 dispatcher that someone was trying to get into her house. In a whisper, she remained in communication
with the dispatcher for about 13 minutes.
She heard defendant in the backyard, trying to open a door. She then heard him on the side of the house,
trying to open a window near the fireplace.
She eventually heard a noise “[l]ike he break it open.†About nine minutes after she first called
911, Wright heard defendant inside her house.
At trial,
Wright described seeing defendant inside her guest bedroom, trying to open her
large safe. She described how defendant
was talking to himself each time she saw him, and how he was making a noise
“kind of like†moaning.
About a
minute after defendant’s entry into the residence, the dispatcher informed Wright
that an officer was pulling up in front of her house. The dispatcher instructed her to remain on
the phone and “[s]tay in the bedroom†with the door locked, but after another
two or three minutes, Wright went outside and contacted the officers.
San Jose
Police Sergeant Russell Bence, one of the responding officers, went to the back
of Wright’s house. He saw defendant
inside, walking towards the back door.
Upon seeing the officer, defendant turned and walked towards the front
of the house. When the officer ordered
him down to the ground, defendant complied.
Defendant was taken into custody.
The parties
stipulated that “none of the witnesses in this case observed the defendant with
an erection, with his pants off, his zipper down, or his private parts
exposed.â€
B. Defendant’s Post-Arrest
Statements
San Jose
Police Officer Nicholas Barry interviewed defendant. He read the Miranda advisements,
name="_ftnref2" title="">[2]
and defendant indicated he understood each one.
Defendant began talking after the officer asked if he wanted to explain
what had happened.
According
to defendant, “a woman friend at a party told him to go over to [Wright’s]
house . . . because the woman there needed him to show her daughter the
difference between a hard penis and a soft penis.†The woman at the house let him inside so he
could “fuck in the safe because the safe was for fucking.†The man of the house “was so mad that he was
there to fuck his woman that he removed the screens from the house to make [defendant]
look bad,†although “the man was also secretly turned on that he was there to
fuck his woman.â€
Defendant
was jittery during the interview process, which can be a sign of being under
the influence of a controlled substance.
However, Officer Barry did not suspect that defendant was under the
influence and thus did not order a blood or urine sample.
C. Prior Conviction Evidence
The jury
heard that in 1980, defendant was convicted of two burglaries in Santa Clara
County. In each case, the District
Attorney alleged that defendant entered a building with the intent to commit
theft.
D. Expert Witness Testimony
Dr. Brad
Novak, a psychiatrist, testified for the defense. He evaluated defendant in 2008. He read police reports, mental health
records, and interviewed defendant. He
noted that defendant had been hospitalized for psychiatric problems five times
in the months leading up to the incident.
All of these hospitalizations were related to methamphetamine or alcohol
use.
Dr. Novak
believed that defendant suffered from several mental disorders at the time of
the offense: amphetamine dependence,
alcohol dependence, cocaine dependence in remission, opiate dependence in
remission, amphetamine intoxication, alcohol intoxication, amphetamine-induced
psychotic disorder with delusions, and antisocial personality disorder. In particular, he was suffering from paranoid
delusions.
Dr. Novak
explained that a psychosis is characterized by confusion and “a break from
reality.†He opined that defendant’s
behavior at the time of the incident was consistent with someone who was
intoxicated and psychotic. Defendant’s
statements were consistent with amphetamine intoxication, which can cause a
person to become hypersexual and confused.
E. Pretrial Proceedings
On June 8,
2005, the District Attorney filed a complaint charging defendant with first
degree burglary by entering an inhabited residence with the intent to commit
theft. (§§ 459, 460, subd. (a).) The complaint alleged that defendant had four
prior convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12)
and three prior convictions that qualified as serious felonies (§ 667,
subd. (a)).
On August
22, 2005, the trial court ordered defendant examined by a psychotherapist to
provide trial counsel with information relevant to the decision “whether to
enter or withdraw a plea based on insanity or to present a defense based on his
or her mental or emotional condition.â€
(Evid. Code, § 1017.)
On November
8, 2005, the trial court declared a doubt as to defendant’s competency. The court appointed three doctors to examine
him.
defendant not competent to stand trial.
On March 15, 2006, defendant was committed to the Department of Mental
Health.
Criminal
proceedings resumed on September 6, 2006, when the trial court found defendant
had been restored to competency. The
District Attorney then filed a first amended complaint, which added an
additional strike allegation (§ 667, subds. (b)-(i), 1170.12) and two additional
prior serious felony allegations (§ 667, subd. (a)).
On October
30, 2006, the trial court again declared a doubt as to defendant’s
competency. The court appointed two
doctors to examine him. On January 31,
2007, the trial court found defendant not competent to stand trial. Defendant was committed to the Department of
Mental Health on February 28, 2007.
Criminal
proceedings resumed on August 25, 2008, when the trial court found defendant
had been restored to competency.
On
September 18, 2008, the District Attorney filed a second amended complaint,
which alleged that defendant committed burglary by entering an inhabited
residence with the intent to commit theft and with the intent to commit a
sexual assault (§ 220). The second
amended complaint alleged that defendant had five prior convictions that
qualified as strikes (§§ 667, subds. (b)-(i), 1170.12) and as serious felonies
(§ 667, subd. (a)).
On
September 25, 2008, after a preliminary hearing, the District Attorney filed an
information containing the same burglary charge and prior conviction
allegations as in the second amended complaint.
Defendant
entered a plea of not guilty by reason of insanity (NGI) on September 29,
2008. The trial court appointed three
doctors to evaluate him. Two of the
doctors disagreed about whether defendant was sane at the time of the
offense. The third doctor did not render
an opinion because defendant terminated the evaluation process early.
On March 4,
2009, the trial court again declared a doubt about defendant’s competency. On July 10, 2009, the parties stipulated that
defendant was not competent to stand trial.
The trial court committed him to the Department of Mental Health that
day.
On December
8, 2010, after a court trial regarding defendant’s competency, the trial court
found defendant competent to stand trial.
On January
24, 2011, defendant withdrew his NGI plea and entered a not guilty plea.
F. Trial Proceedings
A jury
trial began on March 16, 2011. On that
date, the trial court granted defendant’s request to bifurcate the prior conviction
allegations, and defendant waived jury trial on those allegations.
On March
17, 2011, defendant moved to re-enter an NGI plea, but the trial court denied
the motion.
On March
21, 2011, the District Attorney filed a first amended information that made
non-substantive changes to the burglary charge.
On March
24, 2011, the prosecution began presenting evidence.
On March
25, 2011, the District Attorney moved to file a second amended
information. The prosecution proposed to
add a third theory of burglary: that
defendant entered the residence with the intent to commit indecent exposure (§
314). The trial court granted the motion
on March 28, 2011.
On March
30, 2011, the jury found defendant guilty of burglary. On April 4, 2011, the trial court found all
of the prior conviction allegations true.
At
sentencing on September 23, 2011, the trial court imposed a 25-year determinate
term for the five prior serious felony allegations with a consecutive
indeterminate term of 29 years to life for the burglary. The trial court waived all fees and fines.
II. DISCUSSION
A. Denial of Motion to Change
Plea
Defendant
contends the trial court abused its discretion by denying his motion to
re-enter an NGI plea on March 17, 2011, the second day of trial. According to defendant, his “fluctuating
mental state†provided the requisite “good cause†for the delay. (§ 1016.)
Defendant notes that his attorney wanted him to enter an NGI plea at an
earlier stage of the proceedings.
However, he refused due to his mental illness, which made him distrust
the legal system. To support his claim
of distrusting the legal system, defendant points out that he brought many
proceedings. (See People v. Marsden (1970) 2 Cal.3d 118 (Marsden).)
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Respondent
asserts that the record fails to show any “fluctuating competency†between
defendant’s entry of a not guilty plea on January 24, 2011 and his request to
re-enter an NGI plea on March 17, 2011.
Respondent argues that the trial court properly found defendant’s
request to change his plea was untimely, since “there was nothing new in the
record.â€
1. Proceedings Below
Defendant
initially entered an NGI plea on September 29, 2008. On January 24, 2011, defendant withdrew his
NGI plea and entered a plea of not guilty.
On March
16, 2011, the first day of trial, the trial court heard arguments about the
scope of expert testimony from Dr. Novak.
Dr. Novak had been one of the evaluators of defendant’s initial NGI
plea. He did not believe defendant was
legally insane at the time of the offense, but the defense planned to have him
testify about defendant’s mental state.
The hearing concerned several issues, including (1) whether Dr. Novak
would be permitted to testify that defendant was in a state of “psychotic
confusion†and (2) whether defendant’s statements to Dr. Novak would be
admitted.
During
discussions of the second issue, trial counsel asserted that she had been
trying to convince defendant that he could “have both his trial and N.G.I.,â€
but that “[h]e will not do that.â€
Following that comment, defendant indicated he wanted to withdraw his
not guilty plea and re-enter an NGI plea.
Trial counsel indicated she needed to research whether defendant could
change his plea and indicated that she was “not prepared to mount an N.G.I.
trial.†Thus, the trial court continued
the matter until the following day.
On March
17, 2011, defendant formally moved to reenter an NGI plea. The prosecutor opposed the request and
suggested that defendant was motivated by the previous day’s discussion
regarding the permissible scope of expert testimony.
Trial
counsel reiterated that she had previously “begged [defendant] to proceed NGIâ€
but that defendant had not trusted her at the time. She explained that defendant began to trust
her only after hearing her arguments during the previous day’s discussion. Trial counsel reminded the court that
defendant had been evaluated for an NGI plea but that the full evaluation was
not completed because of defendant’s “fluctuating competency issues.â€
The trial
court noted that defendant had been found competent on December 8, 2010 and
that his decision to withdraw his NGI plea on January 28, 2011 was “made by a
competent person who had the ability to decide for himself what he wanted to do.†The trial court found that “nothing has
changed†since defendant made the competent decision to enter a not guilty plea
and noted that it was “the eve of trial.â€
The trial court agreed with the prosecutor that defendant appeared to
change his mind because of the discussion regarding the scope of Dr. Novak’s
testimony.
2. Analysis
If a
defendant has entered a not guilty plea, he or she “shall be conclusively
presumed to have been sane at the time of the commission of the offense
charged,†but “for good cause shown,†the trial court may allow him or her to
enter an NGI plea “at any time before the commencement of the trial.†(§ 1016.)
The decision whether to allow such a change of plea “is a matter within
the sound discretion of the trial judge.â€
(People v. Morgan (1935) 9
Cal.App.2d 612, 615 (Morgan); see
also People v. Montiel (1985) 39 Cal.3d 910, 923 (Montiel).)
At a
minimum, in order to establish “good cause†for a change of plea from not
guilty to NGI, the defendant must show a “plausible reason†for the delay.
(People v. Lutman (1980) 104 Cal.App.3d 64, 68 (
to provide “reasonable grounds to believe that at the time of the commission of
the crime,†he or she was legally insane.
(Morgan, supra, 9 Cal.App.2d
at p. 615; see Montiel, supra, at p.
921; People v. Herrera (1980) 104 Cal.App.3d 167, 173.)
The
defendant in Lutman established good
cause for the delay in entering an NGI plea, because after he entered a not
guilty plea, the law regarding insanity defenses changed, and he sought to
enter an NGI plea within two weeks of
the change in law. His counsel’s
diligence met the “burden under Penal Code section 1016 to show ‘good cause’
for entry of the belated plea.†(
fn. omitted.) The Lutman court held that the defendant was not required to “make an
additional ‘good cause’ showing with respect to the merits of his insanity defense.â€
(Id. at p. 67.)
In
declined to decide whether the “more restrictive standard†of
to change a plea under section 1016, or whether the defendant must also show
that an NGI plea has potential merit. (
921.) The Montiel court did not need to reach the issue because in that case,
the defendant’s “lack of diligence,†alone, justified denial of the
motion. (Id. at p. 923.) There, the
defendant moved to enter an NGI plea on the third day of trial, claiming that
witness testimony had just alerted his attorney that he might have been “insane
at the time the offense was committed.â€
(Id. at p. 921.) The trial court found that the motion to
change the plea was untimely, since the trial testimony was not new, but
consistent with evidence adduced at the preliminary hearing and during pretrial
discovery. (Id. at pp. 922-923.) The
California Supreme Court found no abuse of discretion. (Id.
at p. 923.)
In the
present case, defendant contends that the trial court erred by focusing on
defendant’s competency at the time he entered his not guilty plea and the fact
that “nothing ha[d] changed†since the entry of his not guilty plea. He claims these issues are not relevant to
the question whether defendant had a “plausible
reason†for the delay in seeking to change his plea. (Lutman,
supra, 104 Cal.App.3d at p. 68.)
According to defendant, his “fluctuating competency provided that
reason.â€
We disagree
that the trial court applied an improper standard or failed to consider
defendant’s “fluctuating competency.â€
The trial court’s remarks show that it considered whether defendant was
incompetent at any time between the time he entered the not guilty plea and the
time he moved to reenter an NGI plea.
The trial court implicitly recognized that, at the time of his not
guilty plea, defendant had the “ability . . . to understand the nature of the
in the conduct of a defense in a rational manner.†(§ 1369, subd. (a).) Trial counsel had encouraged defendant to
plead NGI, but defendant had – while competent – rejected that advice. (Compare In
re Kubler (1975) 53 Cal.App.3d 799, 805-806 [trial counsel was ineffective for
failing to investigate basis for possible NGI plea and failing to advise
defendant to enter an NGI plea].)
Defendant did not produce evidence that he pleaded not guilty due to
incompetence, nor did he show that he was incompetent at any time following
entry of his not guilty plea. Lacking
such evidence, the trial court reasonably found that defendant failed to show a
“plausible reason†for his delay
in request to enter an NGI plea. (Lutman,
supra, 104 Cal.App.3d at p. 68.)
The trial
court appears to have found that defendant simply changed his mind and that
this was insufficient to meet the “good cause†standard of section 1016. Such a finding is consistent with cases
considering section 1018, which governs a defendant’s request to withdraw a
guilty plea. For purposes of that
statute, it is well-established that “ ‘[a] plea may not be withdrawn
simply because the defendant has changed his [or her] mind.’ [Citation.]â€
(People v. Breslin (2012) 205
Cal.App.4th 1409, 1416.)
On this
record, we find no basis to conclude that the trial court exercised its
discretion “in an arbitrary, capricious or patently absurd manner resulting in
a manifest miscarriage of justice.
[Citation.]†(
492, 496.) The trial court did not abuse its discretion by finding that
defendant failed to show a “plausible
reason†for his delay in seeking to reenter an NGI plea (Lutman, supra, 104 Cal.App.3d at p. 68) and thus that he failed to
show “good cause†as required by section 1016.
B. Corpus Delicti
In
accordance with the second amended information, the trial court instructed the
jury that it could find him guilty of burglary based on three alternate
theories: (1) entry with intent to
commit theft; (2) entry with intent to commit sexual assault in violation of
section 220; and (3) entry with intent to commit indecent exposure in violation
of section 314. Defendant claims
that the prosecution failed to establish the corpus delicti for burglary under
the latter two theories, since the only evidence of his intent to commit a
sexual offense came from his extrajudicial statements. He contends that the trial court therefore
erred by instructing the jury that it could find him guilty of burglary based
on either of those two theories.
Respondent
asserts this claim was forfeited by defendant’s failure to object below. On the merits, respondent disputes that there
was any instructional error, arguing that the corpus delicti rule does not
require independent evidence of the
target crime of a burglary.
1. Proceedings Below
Below,
defendant first raised issues relating to the corpus delicti in a section 995
motion filed on October 23, 2008. At
that time, the information alleged that defendant committed burglary by
entering the residence with the intent to commit theft or sexual assault in
violation of section 220.
In his
section 995 motion, defendant moved to dismiss the allegation that he committed
burglary by entering the residence with the intent to commit sexual
assault. He argued there was no evidence
he had engaged in any assaultive conduct or in any conduct manifesting a desire
for sexual relations with Wright. He
further argued that his extrajudicial statements could not be used to show he
had any intent to commit a sexual offense because of the corpus delicti
rule. The prosecution opposed the
section 995 motion, arguing that the corpus delicti rule did not require
independent evidence of defendant’s intent.
The trial court denied the motion.
Defendant
also raised the corpus delicti issue in his motions in limine. He again argued that there was insufficient
evidence for the prosecution to proceed on the theory that he had entered the
Wright residence with an intent to commit sexual assault. The trial court denied that motion during a
hearing on March 18, 2011.
In opposing
the filing of the second amended information, defendant argued that there was
no evidence to support the theory that defendant entered the Wright residence
with the intent to commit indecent exposure.
He pointed out that the only evidence even suggesting such an intent
came from his own statement.
At the end
of trial, the trial court instructed the jury on burglary pursuant to CALCRIM
No. 1700. In pertinent part, it informed
the jury that in order to convict defendant, it had to find he entered an
inhabited dwelling house with the intent “to commit theft or a violation of
Penal Code Section 220 or a violation of Penal Code Section 314.†It gave the jury separate instructions on the
elements of those three offenses, as well as an instruction explaining the
corpus delicti rule.
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2. Analysis
Defendant
contends that there was no corpus delicti for burglary based on the theory that
he entered the residence with the intent to commit sexual assault, nor for
burglary based on the theory that he entered with the intent to commit indecent
exposure. Defendant contends that the
instructions therefore permitted him to be convicted of burglary based on
legally inadequate theories. (See generally,
People v. Guiton (1993) 4 Cal.4th
1116, 1129.)
As an
initial matter, we decline to find that defendant forfeited this issue by
failing to object to the jury instructions.
Defendant raised this issue several times during trial, but the trial
court rejected defendant’s arguments each time.
Under the circumstances, “defendant may have reasonably believed†that
advancing a further objection “would have been futile.†(People
v. Hovarter (2008) 44 Cal.4th 983, 1007.)
On the
merits, however, we find no error.
“In every
criminal trial, the prosecution must prove the corpus delicti, or the body of
the crime itself – i.e., the fact of injury, loss, or harm, and the existence
of a criminal agency as its cause. In
California, it has traditionally been held, the prosecution cannot satisfy this
burden by relying exclusively upon the extrajudicial statements,
confessions, or admissions of the defendant.
[Citations.]†(People v.
Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez ).)
However,
“[t]here is no requirement of independent evidence ‘of every physical act
constituting an element of an offense,’ so long as there is some slight or
prima facie showing of injury, loss, or harm by a criminal agency. [Citation.]
In every case, once the necessary quantum of independent evidence is
present, the defendant’s extrajudicial statements may then be considered for
their full value to strengthen the case on all issues. [Citations.]†(Alvarez, supra, 27 Cal.4th at p. 1171.)
“It is well
established . . . that the state of mind of the perpetrator is not an element
of corpus delicti [citations].†(
Cal.App.3d 1005, 1014.) Thus, the corpus
delicti rule does not require independent evidence of premeditation in a first
degree murder case – the degree of the murder “may be shown by extrajudicial
statements of the accused.†(
905, 907; see also People v. Weaver
(2001) 26 Cal.4th 876, 929 [corpus delicti rule does not prohibit jury from
relying on a felony-murder theory to elevate a homicide to first degree murder
“when the only evidence of the sole qualifying felony . . . comes from the
defendant’s own statementsâ€].) Likewise,
where a defendant is “tried on an aiding and abetting theory, the requisite knowledge
and intent required for aider-abettor liability are not elements of the corpus
delicti that must be proved independently of any extrajudicial admissions for
purposes of establishing the corpus delicti.
[Citation.]†(
1083, 1128-1129.) And, in an attempted
murder case, the defendant’s “intent and motive†may be proven by the
defendant’s extrajudicial statements, as they are not part of the corpus
delicti. (People v. Daly (1992) 8 Cal.App.4th 47, 59.)
The only
exception to this rule is “where a specific purpose is an element of the
crime. [Citation.]†(1 Witkin & Epstein, Cal. Criminal Law
(4th ed. 2012) Elements, § 47, pp. 326-328, citing People v. Hawkins
(2004) 124 Cal.App.4th 675, 680, 681 (Hawkins).) In Hawkins,
the defendant was convicted of opening a place for the purpose of unlawfully
selling, giving away, or using a controlled substance in a violation of Health
and Safety Code section 11366. Since the
purpose of unlawfully selling a controlled substance was “the essence of†the
crime and one of the two required elements, it was part of the corpus
delicti. (Hawkins, supra, at p. 681.)
In a
burglary prosecution, the intent to commit a specified offense is a theory of
the case, not an element of the offense.
Burglary is defined as entry with the intent to commit theft or “any
felony.†(§ 459.) The “gravamen†of the offense is the entry,
and the “exact burglarious intent†is merely a “theory of the case.†(People
v. Russo (2001) 25 Cal.4th 1124, 1133 (Russo)
[if the evidence shows “a single entry,†but there is “possible uncertainty†as
to the defendant’s “exact burglarious intent, that uncertainty would involve
only the theory of the caseâ€]; see also People
v. Hernandez (2009) 180 Cal.App.4th 337, 347.)
Here,
defendant’s entry into the residence was “the essence of†the burglary. (Hawkins,
supra, 124 Cal.App.4th at p. 681.)
The intent to commit sexual assault and intent to commit indecent
exposure were merely theories of the case (Russo,
supra, 25 Cal.4th at p. 1133), not part of the corpus delicti, and could
therefore be proven by defendant’s extrajudicial statements alone.
Because the
intent to commit sexual assault or indecent exposure was not part of the corpus
delicti of burglary, the instructions did not permit the jury to convict
defendant of burglary based on a legally incorrect theory.
C. Admission of 911 Call
Defendant
contends the trial court erred by allowing the prosecution to introduce the
recording of Wright’s 911 call into evidence.
He contends the call should have been excluded pursuant to Evidence Code
section 352, claiming it was (1) not relevant to any disputed issues at
trial and (2) prejudicial because it allowed the jury to hear how frightened
Wright was at the time of the incident.
1. Proceedings Below
Below,
defendant objected to admission of the 911 call based on Evidence Code section
352. He argued that the 911 call was
cumulative of other evidence and that it would inject an irrelevant issue –
Wright’s fear and fright – into the trial.
The
prosecutor argued that the 911 call would prove that defendant actually broke
in to the house and the length of time that defendant was inside the
residence. The prosecutor noted that the
incident had been six years earlier and that the 911 call would help with any
forgotten details.
The trial
court ruled that the 911 call was admissible.
It found that the 911 call was not cumulative. Because the incident had occurred about five
and a half years earlier, the trial court found that “the tape may turn out to
be the most accurate and reliable evidence.â€
2. Analysis
Evidence
Code section 352 provides: “The court in
its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.â€
“Under
Evidence Code section 352, the trial court enjoys broad discretion in assessing
whether the probative value of particular evidence is outweighed by concerns of
undue prejudice, confusion or consumption of time. [Citation.]
Where, as here, a discretionary power is statutorily vested in the trial
court, its exercise of that discretion ‘must not be disturbed on appeal except
on a showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of
justice. [Citations.]’ [Citation.]â€
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).)
Defendant
claims “[t]here was nothing probative in the tape.†He points out that the only disputed issue at
trial was his intent, and that the 911 call “did not add anything to
demonstrate [his] intent.†He also
points out that Wright testified at trial and was able to provide details about
the incident.
Defendant
fails to show the trial court abused its discretion by finding that the 911
call had “probative value.†(Evid. Code,
§ 352.) First, the trial court’s ruling
concerning the 911 call was made during pretrial motions, when the trial court
did not know whether Wright would remember details of the incident that had
occurred over five years earlier. “We
may assess the trial court’s ruling only on the facts made known to it at the
time it made that ruling.
[Citations.]†(
Cal.App.4th 417, 425.) In light of the
passage of time since the incident, the trial court reasonably found that the
911 call would be relevant to prove the circumstances of the burglary.
Second,
even though defendant planned to dispute only his intent, the 911 call was
still relevant to prove the circumstances of his entry. Even when a defendant choses to dispute only
one element of the charged offense, the prosecution still must prove all the
elements of that offense. (See
908, fn. 7.) Here, the prosecution had
to prove that defendant entered the Wright residence, since that issue was put
into dispute by defendant’s not guilty plea.
(See People v. Rowland (1992) 4 Cal.4th 238, 260 [a fact
“generally becomes ‘disputed’ when it is raised by a plea of not guiltyâ€]; §
1019.)
Defendant
also contends that any probative value of the 911 call was outweighed by its
prejudicial effect. He cites the trial
court’s subsequent comments about the 911 call to support his claim that the
jury would have felt “a necessity to convict after hearing the fear in the
victim’s voice.†At the hearing on
defendant’s Romero motion,
the trial court noted: “[W]e could hear
Ms. Wright frightened, making that call, whispering as she moved about the
house to try to keep herself and her child safe, brought that past experience
right up to the present date in a very forceful manner. It was as if it was occurring, at least in
the court’s mind, at the time of the trial.
[¶] The recording is – paints a
picture, if words can, of a woman alone with her child, husband who has just
gone to work, and so frightened it seemed almost paralyzed.â€
We have
listened to the CD recording of the 911 call and conclude that the trial court did not abuse its discretion when it
found that its probative
value outweighed any prejudicial effect.
The recording reflects that defendant attempted to get into the Wright
house for about 10 minutes before he was successful. While speaking to the dispatcher, Wright
whispered almost inaudibly. Although her
fright was apparent, there was nothing particularly inflammatory about the
recording. It could not have been
shocking for the jury to learn that Wright was frightened when she awoke to
find a man trying to break in to her house.
In fact, Wright testified several times that she was scared. We find nothing about the 911 call to have
presented a “substantial danger of undue prejudice.†(Evid. Code, § 352; see
517 [tapes of 911 call were not “highly inflammatory†despite the fact that
they revealed that caller was upset].)
Given the apparent probative value of the 911 call
at the time of the trial court’s ruling, we cannot say the trial court abused its discretion when it
concluded that the probative value of the recording outweighed any prejudicial effect.
D. Mid-Trial Amendment of
Information
Defendant
contends the trial court erred by permitting the prosecutor to file the second
amended information on the fourth day of trial, after two witnesses (Wright and
one of the officers) had completed their testimony and a third witness (another
officer) had begun testifying. The
second amended information added the third theory of burglary: that defendant entered the residence with
intent to commit indecent exposure in violation of section 314.
1. Proceedings Below
The trial
court held a hearing concerning the proposed second amended information on
March 25, 2011. It noted that the
witnesses who had already testified could be recalled, so defendant could
question them about the indecent exposure theory. The prosecutor noted that recalling witnesses
might be unnecessary, since defendant’s intent turned on his post-arrest
statement, which yet to be introduced.
The prosecutor also argued that the evidence supporting the indecent
exposure theory was the same as the evidence supporting the sexual assault
theory.
The trial
court heard further arguments about the proposed second amended information on
the next day of trial, March 28, 2011.
The prosecutor reiterated that the indecent exposure and sexual assault
theories were based on the same evidence.
The prosecutor offered to stipulate that no witness had seen defendant
with his pants off, with his pants zipper down, or with an erection.
The trial
court ruled that it would allow the prosecutor to file the second amended
information, and it encouraged the parties to enter into a stipulation as
proposed by the prosecutor. A
stipulation was later read into evidence.
It provided: “That none of the
witnesses in this case observed the defendant with an erection, with his pants
off, his zipper down, or his private parts exposed.â€
2. Analysis
An
indictment or information may be amended by the district attorney at any time
before defendant pleads, and the court may allow amendment of the accusatory
pleading “for any defect or insufficiency, at any stage of the proceedings†(§
1009), “if there would be no prejudice to the defendant. [Citations.]â€
(People v. Graff (2009) 170
Cal.App.4th 345, 361-362 (Graff).)
The
question of whether the prosecution should be permitted to amend the
information is a matter “within the sound discretion of the trial court.†(
997, 1005.)
Several
cases have found error where a late amendment changed the factual basis of the
offense to a different incident. For
instance, in People v. Burnett (1999)
71 Cal.App.4th 151 (Burnett), the
late amendment allowed the jury to convict the defendant of brandishing and
possessing a .357 magnum revolver instead of the .38-caliber revolver that had
been specified in the original information.
The evidence concerning the .357 magnum revolver came out for the
first time at trial, when a witness testified that the defendant possessed that
revolver before he possessed the .38-caliber revolver. The Burnett
court held that because the late amendment changed the factual basis for
the charged offense, it violated “the spirit, if not the letter, of section
1009.†(Id. at p. 170.)
In
Cal.App.4th 858 (Dominguez), the late
amendment allowed the jury to convict the defendant of unauthorized use of a
vehicle based on either of two separate incidents, despite the fact that only
one incident had been shown at the preliminary hearing. This court accepted the Attorney General’s
concession of error. (
In
of committing a lewd or lascivious act with a child aged 14 or 15 years
old. (Id. at p. 351.) The
defendant was not held to answer on two other counts, which involved
masturbation. (Ibid.) However, at trial,
the prosecutor introduced evidence of the masturbation incidents and argued
that the jury could convict the defendant of lewd acts based on those
incidents. This amounted to a
constructive amendment, which prejudiced the defendant because he had not cross-examined
the victim about the masturbation incidents.
(Id. at p. 362.)
Here, the
amendment to add a third theory of burglary did not allow the jury to convict
defendant based on a separate incident, as in Graff, Burnett, and Dominguez. The theories of burglary all related to the
same incident: defendant’s entry into
the Wright residence on June 6, 2005.
Moreover, the evidence supporting the indecent exposure theory was the
same as the evidence introduced at the preliminary hearing to support the
original two theories: defendant’s
post-arrest statement that he was at Wright’s house “to show her daughter the
difference between a hard penis and a soft penis.†Unlike in Graff,
defendant did not need to significantly alter his trial strategy in response to
the amendment. The second amended information
was filed well before the end of trial, so defendant had an opportunity to
address the indecent exposure theory in argument and while examining some of
the witnesses. Indeed, the prosecutor
stipulated that defendant had not exhibited any behavior indicating his intent
to expose himself.
In sum, the
amendment did not permit the jury to convict defendant of an offense not shown
at the preliminary hearing nor cause him any prejudice, and thus it did not
violate section 1009. The trial court
did not abuse its discretion by permitting the amendment.
E. Limitation on Expert
Testimony
Defendant
contends the trial court erred by limiting the scope of the testimony given by
his expert witness, Dr. Novak. He claims
Dr. Novak should have been permitted to testify that, at the time of the
incident, defendant was in a state of “psychotic confusion.†Defendant claims that this limitation on Dr.
Novak’s testimony was error under state law and that it violated his federal
constitutional right to present a defense.
1. Proceedings Below
Below, the
scope of Dr. Novak’s testimony was first raised in the parties’ motions in
limine. The prosecution moved to limit
expert testimony about defendant’s state of mind at the time of the offense. Specifically, the prosecution requested that
Dr. Novak not be permitted to testify that defendant was in a state of
“psychotic confusion.â€
Defendant
sought to admit Dr. Novak’s expert opinion testimony, including his opinion
that defendant was in a state of “psychotic confusion†at the time of the
offense.
In its
supplemental points and authorities regarding the scope of Dr. Novak’s
testimony, the prosecution reiterated that Dr. Novak should not be permitted to
testify that defendant was in a state of “psychotic confusion†at the time of
the offense. The prosecution alerted the
trial court to a case that had recently been published by this court,
873 (Cortes).
On March
16, 2011, the trial court heard the motion concerning Dr. Novak’s testimony. Trial counsel noted that she and the
prosecutor had discussed and clarified some of the issues, but that they still
disagreed about the “psychotic confusion†issue. The prosecutor argued that if the trial court
permitted Dr. Novak to testify that defendant was in a state of “psychotic
confusion†at the time of the offense, it would be tantamount to allowing him
to testify about the ultimate issue of defendant’s mental state. The trial court decided to defer its ruling
until it had read the Cortes opinion.
The
following day, the trial court heard further arguments on the “psychotic
confusion†issue. Trial counsel
suggested that the dispute would be resolved if she instructed Dr. Novak not to
say the words “psychotic†and “confusion†together. After the prosecutor objected that this would
not go far enough, the trial court ruled that “no matter what language, he
can’t opine that [defendant] lacked the mental state required to be convicted
of a burglary.†The trial court
indicated it would allow Dr. Novak to opine that defendant was in a
“drug-induced psychosis†but that the term “psychotic confusion†would be
confusing to the jury.
Before Dr.
Novak testified, the trial court held another hearing to discuss the scope of
his testimony. Dr. Novak asked for “a
little clarification on the psychotic confusion issue.â€
The
prosecutor suggested that Dr. Novak could provide a diagnosis and describe the
“symptoms of a diagnosis,†but not “testify to what he believes the defendant’s
actual state of mind†was at the time of the incident. While Dr. Novak could testify that defendant
was “suffering from psychosis at the time†and that “confused thoughts†were a
symptom of psychosis, he could not say that defendant “was confused.†Trial counsel noted that “the distinctions
are so fine,†but generally agreed with the prosecutor’s description of the
limitations on Dr. Novak’s testimony.
The trial
court attempted to further clarify the limitations, explaining that
Dr. Novak could not tell the jury that defendant “was in a confused state
on that day because that really goes to the ultimate decision the jury has to
make as to whether or not [defendant] had a specific intent to do certain
things, and that is solely their territory.â€
Dr. Novak could opine that defendant’s behavior was “consistent with
that,†however.
As noted
above, Dr. Novak testified that defendant’s behavior at the time of the
incident was consistent with someone who was intoxicated and psychotic. He opined that defendant suffered from
several mental disorders at the time of the offense, including
amphetamine-induced psychotic disorder with delusions. He told the jury that a psychosis is
characterized by confusion and a “break from reality.†He further opined that defendant’s statements
were consistent with amphetamine intoxication, which can cause a person to
become hypersexual and confused.
2. Analysis
We review
the trial court’s decision to admit or exclude evidence – including expert
opinion testimony – for abuse of discretion.
(See Cortes, supra, 192
Cal.App.4th at p. 908.)
The
relevant statutes concerning expert testimony about a defendant’s mental state
are sections 25, 28, and 29. In section
25, the Legislature abolished the defense of diminished capacity and specified
that, “[i]n a criminal action, . . . evidence concerning an accused person’s
intoxication, trauma, mental illness, disease, or defect shall not be
admissible to show or negate capacity to form the particular purpose, intent,
motive, malice aforethought, knowledge, or other mental state required for the
commission of the crime charged.†In
section 28, the Legislature specified that “[e]vidence of mental disease,
mental defect, or mental disorder is admissible solely on the issue of whether
or not the accused actually formed a required specific intent, premeditated,
deliberated, or harbored malice aforethought, when a specific intent crime is
charged.†In section 29, the Legislature
restricted expert testimony as follows:
“[A]ny expert testifying about a defendant’s 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.â€
This court
reviewed the scope of expert testimony concerning a criminal defendant’s mental
state in Cortes, supra, 192
Cal.App.4th 873. This court explained
that a defendant “cannot put on an expert to testify that, because of his
mental disorder or condition . . . , he or she did not have the ability, or
capacity, to form or harbor whatever mental state is a required element of the
charged offense, such as intent to kill, or malice aforethought, or
premeditation, or deliberation.†(
to testify that he had a mental disorder or condition . . . , as long as that
testimony tends to show that the defendant did or did not in actuality†have
the required mental state, and as long as the expert does not “offer the
opinion that the defendant actually did, or did not, harbor the specific intent
at issue.†(Ibid.)
The
defendant in Cortes was convicted of
first degree murder after he stabbed the victim 13 times during a fight. Before trial, a psychiatric expert
interviewed the defendant and prepared a report in which he opined that the
defendant had likely “entered a dissociated state†prior to the stabbing. (Cortes,
supra, 192 Cal.App.4th at p. 893.)
However, the trial court ruled that the expert could not testify
about this conclusion. It ruled that the
expert could only testify “ ‘that there is such a thing as a dissociative
state’ †and describe the characteristics of such a condition. (Id.
at p. 900.)
In
judge had improperly restricted the expert testimony. The expert should have been able “to testify
about defendant’s particular diagnoses and mental condition and their effect on
him at the time of the offense.†(
909.) Specifically, the expert “should
have been permitted to testify that in [his] opinion, defendant entered a
dissociated state†and to describe “dissociation,†including its “behavioral
manifestations.†(Id. at p. 911.) It also
would have been proper for the expert to testify that dissociation can impair a
person’s memory “and can cause the person to act without conscious
volition.†(Ibid.) Such testimony was
permissible because it would only “have given the jury a basis
actually have the mental state required for first degree murder. (Id.
at p. 912.) In other words, the expert’s
proposed testimony “fell short†of expressing an opinion that the defendant
actually lacked the required mental state.
(Ibid.)
Similar
issues were addressed in People v. Nunn
(1996) 50 Cal.App.4th 1357 (Nunn),
where the defendant was convicted of attempted murder after shooting at a group
of men. A clinical psychologist
evaluated the defendant and concluded that, due to inebriation and past
traumatic experiences, the defendant had “fired his rifle impulsively.†(Id.
at p. 1362.) The trial court precluded
the expert from giving this opinion, finding that “it was a conclusion
concerning [the defendant’s] intent at the time of the shooting.†(Ibid.) However, the expert was permitted to testify
“extensively concerning [the defendant’s] background and mental
condition.†(Ibid.)
The
court’s ruling. The court explained that
“[a]n expert may not evade the restrictions of section 29 by couching an
opinion in words which are or would be taken as synonyms for the mental states
involved.†(Nunn, supra, 50 Cal.App.4th at p. 1364.) The expert could have opined that the
defendant, “because of his history of psychological trauma, tended to overreact
to stress and apprehension.†(
incident “was the type that could result in an impulsive reaction from one with
[the defendant’s] mental condition.†(
However, the trial court properly prohibited the expert from testifying
that the defendant “had acted impulsively, that is, without the intent to kill,
that is, without express malice aforethought.â€
(Ibid.)
In perhaps
the closest case on point, limits on a psychiatric expert testimony were upheld
in People v. Young (1987) 189
Cal.App.3d 891 (Young). In Young,
the defendant was convicted of first degree murder after he drove onto a
sidewalk and struck a number of pedestrians, killing one. The defendant had a history of mental illness
(specifically, schizophrenia). At trial,
two psychiatrists testified that the defendant suffered from delusions and that
his “reasoning was psychotic.†(
defendant’s mental illness “affected [his] reasoning at the time of the charged
offenses.†(Id. at p. 907.)
On appeal,
the defendant in Young complained
that the psychiatrists were prohibited from testifying that his mental illness
“ ‘interfered with his having malice on the night of the offenses.’ †(Young,
supra, 189 Cal.App.3d at p. 906.)
The court disagreed, noting that the experts had been able to “ ‘present
lengthy testimony describing [his] mental illness and its effect on his
conduct.’ [Citation.]†(
the expert testimony, the defendant was “afforded the opportunity to present to
the jury the relevant evidence as to his mental condition†at the time of the
offense. (Ibid.)
Defendant
contends that in this case, the trial court’s ruling precluded Dr. Novak from
testifying about one of his diagnosed mental disorders – psychotic
confusion. He points out that in
preclude expert testimony about the defendant’s “particular diagnoses.†(Cortes,
supra, 192 Cal.App.4th at p. 909.)
The record
does not support defendant’s claim that “psychotic confusion†was a medical
diagnosis. (Compare Cortes, supra, 192 Cal.App.4th at p. 895 [“dissociation is a
well-recognized psychiatric condition†].)
Dr. Novak did not diagnose defendant with “psychotic confusion,†but
with a variety of other conditions. Dr.
Novak used the term “psychotic confusion†only when describing the mental state
that resulted from defendant’s drug and alcohol intoxication on the night of
the incident. Dr. Novak described many
of defendant’s behaviors and opined that they were “consistent with psychotic
confusion,†and he linked that opinion to his conclusion that defendant “did
not have the intent to commit the crimes for which he is charged.†At one point in his report, Dr. Novak stated,
“Mr. King was confused and psychotic when he entered the victim’s house. He did not have intent to commit a crime but
rather was acting under the delusional belief that he needed to enter the home
to be safe from the police who were chasing him.â€
Unlike in
Dr. Novak’s use of the term “psychotic confusion†was not meant to be a
diagnosis. It is also clear that Dr.
Novak believed that being in a state of “psychotic confusion†was equivalent to
a lack of intent to commit the charged offense.
Thus, on this record, the trial court’s ruling was not inconsistent with
Cortes, Nunn, or Young. Considering that Dr.
Novak’s report linked that term with a lack of specific intent, testimony that
defendant was in a state of “psychotic confusion†would have equated or come
very close to stating that defendant did not actually have the required
specific intent.
Defendant contends that the only
permissible restriction was to preclude Dr. Novak from testifying that
defendant “lacked the intent to commit the burglary.†He argues that an expert may give testimony
that is “ ‘tantamount’ †to an opinion on the ultimate issue of the defendant’s
mental state, as long as the expert does not explicitly state that the “element
was actually not present.â€
To support
this argument, defendant points out that in Cortes,
this court stated: “ ‘By its
terms, section 29 prohibits an expert witness from giving an opinion about the
ultimate fact whether a defendant had the required mental state for conviction
of a crime. It prohibits no more than
that.’ [Citation.]†(Cortes,
supra, 192 Cal.App.4th at pp. 910-911.)
He points out that this court refused to preclude an expert from
offering “any opinion that could be interpreted as ‘tantamount’ to testifying
that the defendant did not have the mental state required by the crime charged,
or had a state of mind that is the opposite of, or necessarily negates, the
existence of the required mental state.â€
(Id. at p. 910.)
Defendant’s
reading of Cortes is too narrow. In Cortes,
this court rejected the Attorney General’s argument that the expert “could not
testify that persons in a
dissociative state ‘lose their volition and go on automatic,’ because ‘[s]uch
testimony would have been tantamount to testifying that appellant did not have the mental state required by the crime
charged and would have violated section 29.’ â€
(Cortes, supra, 192
Cal.App.4th at p. 910, italics added.)
In other words, this court approved expert testimony about what “
because such testimony would not be “tantamount†to an opinion about what
did. (Ibid., italics added.)
Contrary to defendant’s argument, “[a]n expert may not evade the
restrictions of section 29 by couching an opinion in words which are or would
be taken as synonyms for the mental states involved.†(Nunn,
supra, 50 Cal.App.4th at p. 1364.)
In sum, in
light of Dr. Novak’s report linking the term “psychotic confusion†with his
opinion that defendant lacked the specific intent necessary for burglary, the
trial court did not abuse its discretion by precluding him from using that term
to describe defendant’s mental state. As
in Young, the trial court’s ruling
did not prohibit defendant from “present[ing] to the jury the relevant evidence
as to his mental condition†on the day of the incident. (Young,
supra, 189 Cal.App.3d at p. 907.)
The trial court permitted Dr. Novak to offer his opinion that
defendant suffered from psychosis and to explain to the jury the symptoms and
effects of psychosis, including delusions and “confused thoughts.†Dr. Novak also testified that defendant
suffered from amphetamine-induced psychotic disorder with delusions and that
the disorder is characterized by confusion.
He also testified that defendant likely was suffering from amphetamine
intoxication, which can also cause confusion.
Thus, there was sufficient evidence from which the jury could deteremine
whether appellant’s mental state prevented him from actually forming the
requisite specific intent required for burglary. We find no error.
F. Prosecutorial Misconduct
Defendant
contends the prosecutor committed misconduct by commenting that Dr. Novak
had not testified about defendant’s intent.
He contends that the prosecutor improperly exploited the trial court’s
limitations on Dr. Novak’s testimony. He
also contends that trial counsel was ineffective for failing to object.
1. Proceedings Below
We have
already reviewed the proceedings and law regarding the limitations on Dr.
Novak’s testimony.
During
closing argument, the prosecutor argued that defendant did not suffer from a
mental disease, defect, or disorder that actually prevented him from forming
the specific intent required for burglary.
T
| Description | Defendant Keith Hallan King appeals after a jury found him guilty of residential burglary. (Pen. Code, §§ 459, 460, subd. (a).)[1] The trial court found true allegations that he had five prior convictions that qualified as strikes (§ 667, subds. (b)-(i)) and as serious felonies (§ 667, subd. (a)). He was sentenced to an determinate term of 29 years, consecutive to an indeterminate term of 25 years to life. On appeal, defendant contends: (1) he should have been permitted to change his plea to not guilty by reason of insanity; (2) there was no corpus delicti for two of the three theories of burglary; (3) the victim’s 911 call should not have been admitted; (4) the prosecution should not have been permitted to amend the information during trial; (5) a defense expert’s testimony was improperly limited; (6) the prosecutor committed misconduct; (7) the trial court did not properly answer a jury question; (8) there was cumulative prejudice; and (9) the trial court erred by denying his motion to dismiss the strike allegations. For reasons that we will explain, we will affirm the judgment. |
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