People v. Watson CA6 ( 2021 )

Filed 5/21/21 P. v. Watson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H045141
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1370223)
v.
JAMES ANTHONY WATSON,
Defendant and Appellant.
Defendant James Anthony Watson was convicted by a jury of attempted murder
1
(Pen. Code , §§ 187, 664) of his wife, and the jury found true allegations that he had
acted with premeditation and deliberation (§§ 189, 664, subd. (a)) and personally and
intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)).
The court sentenced him to an indeterminate term of seven years to life for the attempted
murder count consecutive to a term of 25 years to life for the firearm enhancement.
On appeal, defendant claims that (1) the trial court made prejudicially erroneous
evidentiary rulings concerning defendant’s post-arrest statements, (2) the court
erroneously and prejudicially excluded some evidence of his wife’s conduct outside his
presence or knowledge, (3) the court prejudicially erred in precluding the defense expert
from testifying that defendant was suicidal at the time of the shooting, (4) the court
prejudicially erred in denying defendant’s request for a modified version of
1
All further statutory references are to the Penal Code unless otherwise indicated.
CALCRIM No. 603, the heat of passion instruction, (5) the prosecutor prejudicially
misstated the law concerning provocation and the burden of proof, (6) the court’s errors
and the prosecutor’s misconduct were cumulatively prejudicial, (7) a sentence of seven
years to life for the attempted murder count was erroneous, and (8) defendant is entitled
to a remand for the court to consider mental health diversion and to exercise its discretion
to strike the firearm enhancement under statutes enacted after defendant was sentenced.
The Attorney General concedes that a remand is required for the court to consider mental
health diversion and to exercise its discretion to strike the firearm enhancement. We
accept the concessions and reject the remainder of defendant’s contentions.
I. THE PROSECUTION’S CASE
On December 3, 2013, at about 11:00 a.m., defendant called 911 and said that he
2
had tried to kill his wife and himself. He said that he had tried to shoot her and himself,
but “I wasn’t successful.” Defendant told the 911 operator that he thought he had shot
his wife, though he was not sure. He claimed to be “hurt really bad” from trying to break
into the house after his wife locked him out. Defendant stated that his wife was “severely
mentally ill” and that he had been trying to take care of her for years.
Defendant told the 911 operator that the shooting had taken place half an hour
earlier, and his wife had then taken a shower and left the house. He angrily stated that he
had “wanted to fucking die today.” Defendant bemoaned the fact that he had bought
“a piece of shit gun” that “didn’t work.” He said “I should [have gotten] a better gun.”
Defendant said he had “planned it for months.” Although he had not shot himself, he
said he had cut himself breaking the window.
Police officers arrived a few minutes after defendant’s 911 call and arrested
defendant. Defendant, who was wearing only underwear, had small cuts on his hands,
back, and shoulder, and dried blood on his body. Gunshot residue was found on
2
An audio recording of the 911 call was played for the jury at trial.
2
defendant’s hands. The apartment was very dirty, and there were dirty clothes on the
floor in every room and what appeared to be feces on the carpet and on a mattress in the
living room. A .25-caliber semiautomatic pistol was on the dining room floor, the dining
room window was broken, and there was blood throughout the apartment and blood on
wads of paper towels. The gun contained no bullets. Two bullet casings were outside the
front door. Another casing was found in the bedroom of the apartment near blood and a
tooth. A portion of a bullet and two live .25-caliber rounds were also on the bedroom
floor. A bunch of bloody clothing was found in the bathroom.
Defendant’s wife, Roxana Watson, was found about half a mile away on a
sidewalk near a strip mall. She was confused and disoriented and had blood on her jacket
and hands. Roxana had bullet wounds to both her right thumb and her jaw. The bullet
that had damaged her jaw had knocked out three of her front teeth. Surgery was
necessary to remove bone fragments and a bullet fragment from her jaw.
While in jail, defendant bragged about falsely claiming to be suicidal so that he
could talk to a mental health worker about a CPAP machine he needed in jail for his sleep
apnea.
II. THE DEFENSE CASE
Defendant testified at trial as the first defense witness. At the time of the 2017
trial, defendant was 56 years old. When he was 17 years old, he began self-medicating
with marijuana and alcohol. At age 20, he began using cocaine and methamphetamine.
In 1983, he began working as a truck driver. Defendant met Roxana around 1990, and he
fell in love with her. They married in 1995 and began living with defendant’s
grandparents.
In late 2001, Roxana had “a nervous breakdown.” She began going out at night
and not coming home until the next morning. Several times defendant filed a missing
person report, and he also drove around looking for her. He was “scared to death
something was going to happen to her” because she was very small and “can’t defend
3
3
herself very well.” He tried to get her hospitalized for her own protection, but she
refused. She denied that anything was wrong with her and would not take medication.
By 2005, she had been hospitalized two or three times for a month at a time. Defendant
was distressed because Roxana was “suffering” and unable to take care of herself. She
did not cook, bathe, or comb her hair. Roxana did not want to be around other people or
be touched.
At the end of 2005 or the beginning of 2006, “Kaiser suggested” that it would be
better for defendant and Roxana to live apart. Defendant testified that he had been
“suffering from mental illness for years.” Their relationship was “very strained” due to
their mental illnesses and his drug use. He had become dependent on narcotic pain
relievers after back surgery. Defendant testified that Roxana had “paranoid
schizophrenia in her,” and he believed that his drug use was responsible for her mental
illness. They agreed to separate, and they found an apartment for Roxana. Defendant
continued to visit her regularly and to bring her money for groceries.
At some point around that time, defendant told Roxana “why don’t I just shoot
you and shoot myself” so that she would not have to suffer anymore. Roxana told her
doctor about this statement, and it was reported to the police. As a result, defendant was
hospitalized, and the police took away his guns. He was subsequently hospitalized again
after he told his psychiatrist that he was suicidal. Because Roxana could not take care of
herself, she was eventually hospitalized again. She did not want to live with him, so
when she was released from the hospital defendant found a board and care home for her
to live in. He paid for the board and care and visited her regularly. Roxana lived in a
series of board and care homes before her son agreed to have her live with him.
3
Defendant was about six feet tall and weighed about 250 pounds, while Roxana
was petite and weighed around 100 pounds.
4
Although she remained “severely mentally ill” while she lived with her son, she
was “much happier” living with her son than at the board and care homes. But in 2012
her son decided to move to Kentucky. Roxana chose to live with defendant rather than
move to Kentucky with her son. After they resumed living together, defendant found it
frustrating that Roxana tended to put his “personal things” on the floor. She told him that
she “didn’t love [him] anymore,” but he continued to love her.
In May 2013, defendant lost his job and had only disability income thereafter. He
had “thought about suicide for years.” After he lost his job, he sometimes did not take
his medication and instead went on multi-day methamphetamine “binges” that left him in
“extreme pain.” In June or July 2013, defendant bought a gun so that he would have
“a way to kill myself.” He kept the loaded gun wrapped up in clothing on the living
room floor.
His relationship with Roxana became “very, very strained” after he lost his job.
When she asked him for money and he told her that he had none, she did not believe him.
Roxana continued to leave the house at night, and defendant could not always find her.
He would call the police, and the police would find her.
On Tuesday, December 3, 2013, defendant had been awake since the previous
Friday after taking drugs with a friend. He was in pain and had run out of pain
medication, and he had not been taking his medication for his bipolar disorder.
Defendant felt “hopeless,” “extremely distraught, [and] overwhelmed” because he did not
expect to have the money to pay the rent in a couple of days. His disability income had
“just about run out.” He was “broke” and had “no where to turn.” He expected to
become homeless and have to live in his car, and he believed that Roxana would leave
the car and go wandering around at night when he was asleep. He “couldn’t deal” with
that. Defendant “wanted to die,” and he was afraid to leave Roxana alone. Therefore, he
“wanted to take [his] wife with [him] because nobody was going to take care of her.” He
5
felt that he could not “live with that stress anymore” of worrying about Roxana
wandering around at night.
Defendant asked Roxana for a “hug,” and she “said no” and turned away from
him. The two of them had not had any physical contact since 2001. They were both
sitting in the living room of their apartment. When she refused to hug him, “something
inside [him] just snapped.” “I want to die. And my wife has been suffering for years and
if I die nobody is going to take care of her. I couldn’t leave her alone in the world so I
wanted her to go to heaven with me.” He got up, retrieved the gun, sat back down, and
unwrapped the gun. The next thing he testified to was Roxana taking the gun from him
and throwing it out the window. Defendant went outside and retrieved the gun, but when
he tried to reenter the apartment the front door was locked. He fired two shots at the
front door lock, but it did not open. He then ran around to the dining room window,
broke the window with the gun, and climbed in the window. Roxana was still in the
apartment. Defendant testified that he did not remember anything else until the police
arrived.
On cross-examination, defendant claimed that he did not remember most of the
events of that day, the 911 call, or his statements to the police. He admitted that he had
pointed the gun at Roxana, that he intended to kill her, and that she had a bloody head
wound after he pointed the gun at her. He also admitted that he remembered the gun
failing to fire, either because it was jammed or because he failed to take off the safety.
After that the gun was fired again. Defendant admitted that his intended use of the gun
when he bought it was to kill his wife and himself. However, he denied any memory of
shooting his wife. He did testify that he remembered Roxana taking the gun from him,
running into the bedroom, and throwing the gun out the window. Defendant also testified
that when he tried to shoot his way back into the apartment he still wanted to kill his wife
and himself. His motivation for killing Roxana remained his belief that he “couldn’t
leave her with nobody to take care of her.”
6
Defendant also admitted that he had lost his job because he told a coworker “that
if [defendant] called him one day and told him not to go to work he shouldn’t go to work
because [defendant] would be bringing an AK-47 and hand grenades and blowing up the
4
place.” He complained that the firing was unfair and that his employer was just using
his statement as a reason to get rid of him because he was a drug addict and had sustained
numerous workplace injuries. After he lost his job, he continued to collect $800 a week
in disability benefits and his health insurance remained in effect.
Defendant testified that when “things got stressful” he would leave the apartment
and go to his friend’s house or his mother’s house. He did so on a weekly basis, and he
would be gone for as much as a day or two. Roxana was never hurt while he was gone.
A longtime friend of defendant testified that he stayed with defendant and Roxana
for “a few days here and there . . . [m]ainly during the wintertime” in 2012 and 2013
when he was homeless. He also said that he saw the couple once or twice a month.
He observed that Roxana was “[v]ery distraught” and “[n]ot mentally stable.” She
“periodically” washed the front door with “a whole bottle” of dishwashing liquid.
Roxana would yell at defendant and walk around continuously. She frequently wanted to
go shopping at night, and defendant would prevent her from doing so, which upset her.
Roxana seemed upset that the friend was there.
Psychologist Rahn Minagawa testified as an expert “in the area of psychology.”
He testified that “suicide is a prominent symptom of depression.” Minagawa conducted a
“full psychological evaluation” of defendant in 2014. He first met defendant three
months after the shooting. He determined that defendant was depressed and anxious.
Minagawa also diagnosed defendant with “a mood disorder, bipolar disorder Type 1 tied
with depression” and “substance abuse problems dependence . . . .” He reviewed records
4
Defendant had told the police about this during his December 3, 2013 interview.
A video of this interview was played for the jury by the prosecution as rebuttal evidence.
7
of defendant’s treatment back to 2006, and defendant’s “suicidal feelings, feelings of
hopelessness” “were present . . . back several years.” Defendant had previously been
diagnosed with bipolar 1 disorder. Minagawa concluded that defendant’s bipolar 1
disorder was in partial remission and that his “anxious distress” was moderate.
Defendant’s records showed that he had been involuntarily hospitalized multiple times
for depression, and guns had been removed from his possession. His first hospitalization
occurred after he threatened to shoot Roxana to “[p]ut her out of her misery.” Defendant
was hospitalized three additional times between 2010 and 2012 due to his reports that he
planned to commit suicide. Defendant had never attempted suicide though.
Minagawa testified that defendant’s ability to make rational decisions was
impaired by his depression beginning in May 2013 and continuing through the shooting.
In response to a hypothetical based on defendant’s circumstances at the time of the
shooting, Minagawa testified that such a person would not be thinking rationally.
However, he conceded that people without mental disorders act irrationally “all the time.”
Frances Watson, defendant’s mother, testified that Roxana would leave the house
and wander the street, and that she “just wasn’t right” and was “basically just shut off.”
Roxana was unable to care for herself and would not take her medication or see doctors.
Once, Roxana was gone for a whole day and returned “just walking like a zombie,” with
a sunburned face, and unresponsive.
Roxana’s brother, Jaime, testified that Roxana had a “nervous breakdown,” was
hospitalized about 10 times, became “very afraid,” and “was diagnosed with
schizophrenia paranoia.” Roxana would walk around the house for hours at a time and
would not sleep at night. He testified that family members tried to get Roxana to take her
medication, but she would only pretend to take the pills and then spit them out when no
one was looking.
8
III. THE PROSECUTION’S REBUTTAL EVIDENCE
The prosecution played for the jury defendant’s police interview, which had been
conducted at the police station half an hour after defendant’s 911 call. During this
interview, defendant told the police that, after he lost his job in May 2013, he did not
apply for social security disability benefits right away because he was going to kill his
wife and himself. He did not follow through because he thought things would get better.
But he got tired of waiting for that to happen. He told the police that his wife “acts crazy
every day” and “drives me nuts.” Defendant told the police that his wife was “severely
mentally ill,” but she would not take medication because she “thinks there’s nothing
wrong with her.”
On December 3, 2013, he was “coming down from a couple days of doing meth,”
and “my wife was driving me crazy.” “I said ‘You know what? This is a good day to
die’. And I grabbed the gun.” He had bought the gun for $160 four months earlier. It
came with two rounds, and he also bought a “box of shells.” “I wanted to make sure that
my wife wouldn’t suffer in any way, and the only way I knew that she wouldn’t suffer is
if she was dead.” The gun was already loaded when he grabbed it. He “tried to sneak up
on her” in the living room, but she saw him and grabbed the gun. They struggled over
the gun. His wife got the gun away from him. He got it back from her, but it “jammed”
at first. By the time he able to fire the gun, they were in the bedroom lying on the floor.
He fired twice in the bedroom. While he was trying to fire it, he ejected multiple rounds.
She got the gun away from him and threw it out the window. He went outside to retrieve
the gun, and she locked him out. He shot the door twice trying to get back in. He broke
the window, climbed in, and fell on his back.
Defendant repeatedly blamed the gun for his situation because it had not
performed properly. When he was asked what had “triggered” him to shoot his wife, he
said he was sick of living, sick of listening to his wife suffer, and no one was ever going
to help his wife. After the shooting, his wife left the apartment, and he “should have”
9
killed himself. He said that he did not do so because he was worried about his wife.
Nevertheless, he asked the officer to give him a gun so he could kill himself. “All
I wanna to do is kill myself.” “Just let me kill myself.”
IV. PROCEDURAL BACKGROUND
The defense at trial was that defendant had acted in the heat of passion due to his
desire to kill himself and therefore should be convicted of only attempted voluntary
manslaughter. Defendant’s trial counsel argued that defendant was guilty of attempted
voluntary manslaughter because he was “overwhelmed by feelings of hopelessness and
despair that were generated over years of caring for Roxana . . . .” Defendant’s trial
counsel further argued that there was “good evidence that when he grabbed the gun he
wanted to die.” “His decisions were not rational. He could only focus on the
hopelessness of his situation. And he reacts from emotion because he cannot regulate his
emotions at that time.” “[I]n this case, the intense emotion is hopelessness and despair.
That is an emotion that is powerful and it can cause a person to act without due reflection
or reason.” As to provocation, she argued: “Provocation can be anything. It can be a
word. It can be an action. It can be a refusal to act. It can be right there in the moment
right when something happens, a snap. Or it can be buil[t] up over a long period of time.
It can be a combination of things that happen[ed] in the past and how those reflect on
something that happens right now.” She argued that Roxana provoked defendant by
refusing to hug him.
After the guilt phase resulted in a guilty verdict on the attempted murder count and
true findings on the premeditation and firearm allegations, the parties waived their rights
to a jury trial on sanity. The court held a bench trial on sanity and determined that
defendant was sane when he committed the offense. Defendant was committed to an
indeterminate term of seven years to life for the attempted murder count consecutive to a
term of 25 years to life for the firearm enhancement.
10
V. DISCUSSION
A. Defendant’s Post-Arrest Statements
1. Background
During in limine motions, the prosecutor told the court that she was not currently
seeking to admit defendant’s “alleged threats to his workplace.” However, her position
was contingent on the court’s ruling on the defense’s request for admission of
defendant’s post-arrest statements to the police. The prosecution opposed the defense’s
request.
The defense claimed that defendant’s post-arrest statements were nonhearsay or
admissible under Evidence Code section 1250 or admissible as defendant’s statement of
his then-existing mental or physical condition. For example, the defense argued that
defendant’s request that the officer shoot him was nonhearsay. The prosecution argued
that the statements were inadmissible because they were untrustworthy.
The court viewed the “fundamental” question as whether, under the circumstances,
defendant’s post-arrest statements “could be admitted without the defendant taking the
stand when offered by the Defense . . . .” The court stated that it was “balancing” factors
under Evidence Code section 352, and it concluded defendant’s post-arrest statements
“should not be admissible, absent the defendant perhaps testifying” and those statements
“becoming relevant.” The court concluded that there was “sufficient reason to believe”
that, under the circumstances, the statements were untrustworthy due to defendant’s
motive to fabricate. The court, relying on Evidence Code section 352, rejected admission
of the statements as nonhearsay, spontaneous statements, or state of mind evidence. The
court ruled that, even if defendant testified, the video of his statements to the police
would still be inadmissible unless his statements fell within a hearsay exception. It stated
that it would consider whether some of defendant’s statements were admissible
nonhearsay if defendant testified.
11
The defense subsequently renewed its request for admission of “nonhearsay”
statements of defendant to the police, which it claimed were admissible “to show state of
mind.” Defendant’s trial counsel argued that defendant’s request that the police kill him
was relevant to show defendant’s state of mind at the time of the shooting. The defense
theory was that defendant’s alleged desire to kill himself meant that he had not
considered the consequences of killing Roxana. His trial counsel argued that defendant
was “in a passionate state of hopelessness and despair” at the time of the shooting. The
defense position was that defendant’s post-arrest statements “prove the strengths of his
passion . . . .” The renewed request was limited to the statements that did not expressly
say that he wanted to die, which the defense conceded would be hearsay; the defense
sought admission of only defendant’s statements asking the police to kill him or let him
kill himself. The court excluded these statements under Evidence Code section 352
because there were “too many hallmarks of concern when it comes to trustworthiness and
reliability in the balancing of probative value versus prejudicial impact should they be
introduced absent [defendant] testifying . . . .” The court said it would reconsider the
admissibility of these statements if defendant testified.
After the defense case, the prosecution played a video of the police interview for
the jury as rebuttal evidence. Although the prosecution had sought to redact defendant’s
“suicidal statements” during that interview under Evidence Code section 352, the court
accepted the defense’s position that those statements were admissible under Evidence
Code section 356.
2. Failure to Hold Evidence Code section 402 Hearing
Defendant maintains that his state of mind defense “depended on the admission of
his post-arrest statements.” He contends that the trial court prejudicially erred by
“requiring appellant to testify before the jury in order to admit his statements.” His
position is that the trial court was required to hold an Evidence Code section 402 hearing
outside the presence of the jury at which he “could have testified regarding the
12
trustworthiness of the evidence.” He claims that the trial court’s failure to hold such a
hearing erroneously “forced him to testify.”
A trial court is not required to hold an Evidence Code section 402 hearing to
consider the admissibility of evidence. “The court may hear and determine the question
of the admissibility of evidence out of the presence or hearing of the jury; but in a
criminal action, the court shall hear and determine the question of the admissibility of a
confession or admission of the defendant out of the presence and hearing of the jury if
any party so requests.” (Evid. Code, § 402, subd. (b), italics added.)
While a trial court must hold an Evidence Code section 402 hearing to “determine
the question of the admissibility of a confession or admission of the defendant . . . if any
party so requests,” defendant’s attempt to secure admission of his extrajudicial statements
did not concern a confession or admission, and he admits that he did not request an
Evidence Code section 402 hearing. Thus, the only available argument is that the trial
court abused its discretion in failing to sua sponte hold an Evidence Code section 402
hearing. Defendant has not satisfied his burden of showing that the trial court abused its
discretion in this regard. Defendant’s trial counsel never even suggested to the trial court
that he wanted to have defendant testify at a hearing outside the jury’s presence or that he
wished to offer any other evidence relevant to the admissibility of the proffered evidence
at such a hearing. Accordingly, the trial court had no reason to even suspect that such a
hearing was merited. We find no abuse of discretion in the trial court’s failure to hold an
Evidence Code section 402 hearing.
Defendant also claims that the trial court’s ruling that his post-arrest statements
were inadmissible violated his constitutional rights because it forced him to testify.
Although he cites several United States Supreme Court cases as support for this
argument, none of them involved a defendant who was precluded from introducing his
own hearsay statements.. (Chambers v. Mississippi (1973) 410 U.S. 284, 294 [due
process violation to preclude defendant from implicating a third party by either cross
13
examining the third party or presenting witnesses to whom the third party had made
admissions]; Green v. Georgia (1979) 442 U.S. 95, 97 [due process violation to preclude
defendant from introducing hearsay confession of third party]; Washington v. Texas
(1967) 388 U.S. 14, 22 [due process violation to preclude defendant from presenting
testimony from alleged accomplice].) Defendant’s reliance on In re Ali (1964) 230
Cal.App.2d 585 is also inapt. Ali concerned the denial of a continuance that resulted in
the defendant being deprived of counsel when he was forced to choose between his right
to counsel and his right to a jury trial. (Id. at pp. 587-588.) The Court of Appeal noted
that “[t]he exercise of one constitutional right cannot be conditional upon the denial of
another.” (Id. at p. 591.) That statement has no applicability here, as defendant has
failed to establish that he had a constitutional right to present his own hearsay statements.
Defendant has not established that the trial court erred in ruling that his postarrest
hearsay statements were inadmissible. Thus, there is no support for defendant’s claim
that he was “pressured to testify . . . as the result of trial court error.”
3. Nonhearsay Statements
Defendant contends that some of his postarrest statements were nonhearsay and
that the court therefore erred in ruling that those statements were inadmissible under
Evidence Code section 352. The statements he identified below as nonhearsay consisted
largely of defendant’s exhortations to a police officer to kill him or “let me kill myself”
and his statements about Roxana. He claims that these statements were “offered for the
non-hearsay purpose of establishing appellant’s suicidal state of mind at the time of the
crime and his concern for his wife.” In his view, the trial court’s Evidence Code
section 352 balancing was defective because the court erroneously considered the
trustworthiness of the statements. Defendant maintains that the court had no basis for
finding that the probative value of the statements was outweighed by prejudice as there
was no potential prejudice. He claims he was prejudiced by the court’s ruling because it
“forced him to testify,” and his testimony was prejudicial to his defense.
14
Initially, we consider the group of statements that defendant claimed were
nonhearsay and were not part of the video ultimately introduced by the prosecution.
These statements were not included by the prosecution in the video because they
occurred before defendant was informed of his constitutional rights. One group of these
statements concerned Roxana’s condition and needs and defendant’s concern for her.
Defendant asked the officer: “How would you feel if, if you, your wife
was . . . wandering the streets . . . how would you feel?” “I don’t care about my injuries.
All I care about is my wife.” “My wife needs long term care.” “[W]ho’s gonna keep me
updated on my wife.” “Where’s she at and, and everything.” “[S]he’s severely mentally
ill . . . she needs round the clock care.” “[S]he can’t take care of herself. She can’t feed
herself. She has no money. She has nothing.” “She’s got nobody. She’s got no place to
live!” “She’s got nobody to take care of her.” A couple of defendant’s pre-video
statements concerned his own desire to kill himself. “I just wanna know how long . . . to
get outta here to fuckin’ kill myself so I can fuckin’ get it over with.” “[Y]ou can just let
me die of fuckin’ pneumonia.”
Because defendant’s statements about Roxana’s condition and needs and his
concern for her had no probative value if they were not true, it was not possible to
separate their hearsay content from any nonhearsay content. They were not probative just
because he made the statements. His statements about what he “care[d]” about had no
probative value if they were not true. Similarly, his statement that he wanted to “kill
myself” was probative only if true. There was no apparent relevance to the remaining
statements: his question to the officer about how the officer would “feel” if “your wife
was . . . wandering the streets” and his reference to dying of pneumonia. The first
statement had no relevance unless it was true that Roxana was “wandering the streets,”
which would be hearsay. The second statement was made while defendant was
complaining about how cold he was due to the fact that he had no clothes. We find no
abuse of discretion in the trial court’s determination, under Evidence Code section 352
15
that any minimal relevance of the nonhearsay content of these two statements was
substantially outweighed by the potential that their admission would sidetrack or confuse
5
the jury.
The remaining statements identified by defendant below as nonhearsay were all
included in the video introduced by the prosecution. The first of these statements
occurred when defendant was informed of his constitutional rights. Defendant
responded: “I don’t want any rights.” It is not apparent what nonhearsay probative value
this statement had. The next statement identified by defendant is: “Now I got no way of
knowing what’s gonna happen to her. That’s why I wish you would just fuckin’ kill me.
I don’t care if I fuckin’ die now.” After that, defendant said: “I’m sick of living, guy.
I’m sick of listening to my wife suffer. I’m sick of living. Sick. Life’s never gonna get
better. It’s—life’s a lost cause. Nobody’s ever . . . gonna help my wife. Now I fucked
up. Now I fucked up for good.” These statements were largely hearsay (“I wish” “I
don’t care” “I’m sick” “Nobody’s ever”) and had no relevance if they were not admitted
6
for their truth content. To the extent that any of these statements were not hearsay
(“Life’s never gonna get better”; “life’s a lost cause”), they had no apparent relevance.
His subsequent statements were similar: “I should’ve just fuckin’ shot myself. It
would’ve been easier. Maybe I could’ve done that right.” “My life don’t exist anymore.”
The mere fact that he made these statements after shooting his wife had no apparent
relevance. The same is true of defendant’s request that the officer give him a gun so he
could kill himself.
5
The same is true of defendant’s statements seeking updates on Roxana’s
condition.
6
Defendant also identifies as nonhearsay his response when asked when he had
last washed his hands. Defendant said “[a] week ago.” It is impossible to identify any
nonhearsay value of this statement. It had no relevance unless it was true.
16
We find no abuse of discretion in the trial court’s determination that, to the extent
that any of these statements had any nonhearsay value, it was substantially outweighed by
the danger of confusing the jury and appealing to the jury’s sympathies rather than
providing relevant and material evidence. The court did not err in ruling that these
statements were not admissible.
4. Spontaneous Statements
Defendant claims that his hearsay postarrest statements about his wife’s condition
and his desire to kill himself were admissible as spontaneous statements.
“Evidence of a statement is not made inadmissible by the hearsay rule if the
statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event
perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was
under the stress of excitement caused by such perception.” (Evid. Code, § 1240.)
“ ‘Whether the requirements of the spontaneous statement exception are satisfied in any
given case is, in general, largely a question of fact. . . . In performing this task, the court
“necessarily [exercises] some element of discretion . . . .” ’ ” (People v. Smith (2007) 40
Cal.4th 483, 519.)
To qualify for admission as a spontaneous statement, the statement must not only
purport to describe an event perceived by the declarant but also it must be true that the
same event caused the declarant’s excitement. The trial court could have reasonably
concluded that defendant’s “stress of excitement” was caused by his perception of
shooting Roxana, not by his perception of Roxana’s preexisting condition or by his desire
to kill himself. On this basis, the court could have concluded that these statements did
not qualify for admission as spontaneous statements.
5. State of Mind
Defendant also contends that these statements were admissible under Evidence
Code sections 1250 and 1252.
17
Evidence Code section 1250 provides: “(a) Subject to [s]ection 1252, evidence of
a statement of the declarant’s then existing state of mind, emotion, or physical sensation
(including a statement of intent, plan, motive, design, mental feeling, pain, or bodily
health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is
offered to prove the declarant’s state of mind, emotion, or physical sensation at that time
or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is
offered to prove or explain acts or conduct of the declarant. [¶] (b) This section does not
make admissible evidence of a statement of memory or belief to prove the fact
remembered or believed.” However, “[e]vidence of a statement is inadmissible under
this article if the statement was made under circumstances such as to indicate its lack of
trustworthiness.” (Id., § 1252.)
The trial court found that defendant’s statements were not trustworthy because
they were made to the police after defendant had been arrested for shooting Roxana.
“ ‘The decision whether trustworthiness is present requires the court to apply to the
peculiar facts of the individual case a broad and deep acquaintance with the ways human
beings actually conduct themselves in the circumstances material under the exception.
Such an endeavor allows, in fact demands, the exercise of discretion.’ [Citation.]
A reviewing court may overturn the trial court’s finding regarding trustworthiness only if
there is an abuse of discretion.” (People v. Edwards (1991) 54 Cal.3d 787, 819-820.)
We find no abuse of discretion. Defendant’s statements were made to the police
after he had been arrested for shooting Roxana. At that time, he had every incentive to
minimize his culpability for the shooting, and the trial court could have reasonably
concluded that defendant’s statements were aimed at providing a slanted narrative that
defendant believed would support some sort of defense. We reject defendant’s claim that
the trial court erred in ruling that his postarrest statements were not admissible.
18
B. Evidence of Roxana’s Conduct
Defendant contends that the trial court prejudicially erred in excluding evidence of
Roxana’s conduct outside of defendant’s presence. He claims that this evidence would
have “corroborated” his testimony about her mental condition and behaviors.
1. Background
The prosecution filed an in limine motion seeking exclusion of the testimony of
Frances Watson and Jaime Alfaro on the grounds that their “proposed testimony” lacked
7
foundation, was irrelevant, and was based on inadmissible hearsay. The prosecution
argued that Frances Watson should not be permitted to testify to “her opinion of the
victim’s mental health” or “mental health diagnosis” because she lacked expertise and her
opinions were irrelevant and based on hearsay. The prosecution contended that Jaime
Alfaro should not be permitted to testify to “anecdotes” about events that occurred “long
before” the shooting and lacked any relevance to defendant’s actions and state of mind on
the day of the shooting. The prosecutor’s objections were based on the public defender’s
investigator’s reports on these two witnesses, which were attached to the in limine
motion.
The trial court took up the prosecution’s motion at the hearing on in limine
motions. It noted: “Because I only have from the People’s motion, I have investigative
statements. And it is a little bit difficult to appreciate from those statements the basis of
the knowledge or what particularly the Defense would be seeking to do with those
witnesses.” Defendant’s trial counsel told the court that Frances Watson would not be
testifying to any “diagnosis” and would testify that she had “observed” defendant’s
“interactions” with Roxana. The trial court ruled that testimony by Frances Watson about
those interactions would be admissible.
7
The motion also sought exclusion of a third defense witness’s testimony, but that
witness did not testify and is not at issue on appeal.
19
Defendant’s trial counsel told the court that Jaime Alfaro would testify that
Roxana had “stayed with him for some time. He couldn’t take it. When she was around
everyone gets tensed because . . . it’s like having a crazy child in the house. She doesn’t
make any sense. And the statement that was provided by him for the prosecution is
Jamie [sic] Alfaro[’s] specific observations of his sister’s behavior while she was living
with him.” “She would scream. She would throw things on the ground. She would be
nonresponsive. She would wander around and not return. She would make people
uncomfortable with the way that she would, you know, interact with or stare at nothing or
clutch at random things without there being anything to interact with. [¶] Jamie [sic]
Alfaro experienced Roxana Watson’s symptoms while living with her personally and can
describe that.” When the court asked when Roxana had lived with Jaime Alfaro,
defendant’s trial counsel expressed uncertainty and suggested that it might have been in
2012 or 2013. Defendant’s trial counsel also said that Jaime Alfaro would testify about
his “interactions with [defendant]” about Roxana.
The trial court offered “a few comments to tell you where my thinking is at the
moment.” The court rejected the prosecution’s motion to preclude Jaime Alfaro and
Frances Watson from testifying. The court was “a little bit more uncertain” about the
admissibility of testimony about “observations of Roxana Watson outside the presence of
[defendant] and how she may have been as a person generally because that is not as
informative and probative as to how [defendant]’s state of mind may have developed and
what his intent, motivation, and mental processes may have been on the date of the
incident. But I’m still pondering that . . . .”
The court returned to this issue later that day. Defendant’s trial counsel told the
court that “it may be that the information that I can put in front of the jury about what
[defendant] himself saw will be limited to what other individuals saw him experience
with Mrs. Watson” But she contended that “[l]imiting information to the jury solely to
what someone observed Roxana doing with [defendant] there would essentially—it
20
would deprive the Defense of giving the jury a full perspective on what the true nature of
Roxanna’s [sic] behavior is.” She argued that evidence of Roxana’s behavior outside
defendant’s presence was needed to avoid the jury getting the impression “that this is
somehow something [defendant] brought upon himself to counterbalance that to the false
impression.” The court remained concerned that “[w]ithout [defendant]’s subjective
appreciation of any of those facts, the issues are meaningless to the jury.” It said:
“I don’t think that it is appropriate, sufficiently probative and necessary for the jury to
hear specific instances of behavior of Roxana Watson that cannot be tied to observations
or knowledge that the defendant had of those behaviors.” Defendant’s trial counsel asked
the court whether evidence could be admitted that someone other than defendant had
experienced behavior by Roxana that was similar to that experienced by defendant. The
court said “I think no . . . .”
The court returned to this issue again after the prosecution rested and before the
defense case began. At this point, the court expressed a more refined position: “[H]ow
Roxana behaved outside of [defendant]’s presence with other people on specific days or
times when [defendant] was not present, I think based on relevance and Evidence Code
[s]ection 352, I don’t think the jury needs to hear extensive testimony and detail from
witnesses talking about her behavior and such at times when [defendant] was not
interacting with her or was not present. [¶] However, as I have tried to articulate, I do
think as a general matter the jury can learn a fact like, for example, Roxana was living
with me—from a witness—and I was not able to care for her or I was not able to maintain
that and so I advised the family . . . .”
Frances Watson subsequently testified without objection about Roxana’s
behaviors, although she testified she “never saw her,” never went to the apartment where
defendant and Roxana were living together, and “didn’t interact with her much.” She
testified that Roxana would leave the house and wander the street, and that she “just
wasn’t right” and was “just basically shut off.” Frances Watson testified that Roxana
21
would not take her medication or see doctors. She also testified that once Roxana was
gone for a whole day and returned “just walking like a zombie,” with a sunburned face,
and unresponsive. Frances Watson also testified that when Roxana lived in an apartment
by herself, she was unable to care for herself. The apartment was “a filthy mess,” and
there was no food in the refrigerator. The trial court did not limit this testimony in any
way.
Jaime Alfaro, Roxana’s brother, testified that Roxana had been “diagnosed
schizophrenia paranoia.” The prosecution’s objection was overruled. Alfaro testified
that Roxana was hospitalized 10 times for as long as four months at a time. He also
testified that Roxana lived with defendant “the whole time after she got sick.” She tried
to avoid taking her medication, and when she took the medication she was “like a
zombie.” He testified that, at some indeterminate time before the shooting, he observed
Roxana when she was not taking her medication: “She walked around the house a lot
nonstop. I would say seven hours walking and she will give you dirty looks and keep
walking and walking and walking. She will not sleep at night. She stayed up all night
until 6:00 in the morning. Maybe she sleep a couple hours after that but very scary.”
The only testimony that was excluded was Alfaro’s testimony that his kids were afraid of
Roxana. Jaime Alfaro’s testimony made clear that Roxana never lived with him before
the shooting and only lived with him for a couple of weeks after the shooting. He
testified that he did not see her or defendant in 2012 or 2013.
2. Analysis
Defendant claims that the trial court erroneously excluded testimony by Frances
Watson and Jaime Alfaro about Roxana’s “general behavior.” The Attorney General
responds that the trial court did not make a ruling excluding the testimony that defendant
premises his contention upon because no such testimony was offered by the defense and
rejected by the court. Defendant replies that the “ruling” he is challenging is the trial
22
court’s statement at the in limine hearing concerning “specific instances of behavior” of
which defendant had no knowledge.
Defendant’s claim of error cannot succeed because the record does not reflect that
the court made a ruling excluding any specific proffered testimony by these witnesses
about Roxana’s behavior prior to the shooting. “A verdict or finding shall not be set
aside, nor shall the judgment or decision based thereon be reversed, by reason of the
erroneous exclusion of evidence unless the court which passes upon the effect of the error
or errors is of the opinion that the error or errors complained of resulted in a miscarriage
of justice and it appears of record that: [¶] (a) the substance, purpose, and relevance of
the excluded evidence was made known to the court by the questions asked, an offer of
proof, or by any other means; [¶] (b) The rulings of the court made compliance with
subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during
cross-examination or recross-examination.” (Evid. Code, § 354.)
Defendant makes no effort to address the context in which the trial court made the
statements that he claims were a ruling concerning the potential admissibility of
testimony by these two witnesses.
The court was never asked to rule on the admissibility of specific testimony by
Frances Watson about Roxana’s behaviors outside of defendant’s presence. When the
trial court inquired “what particularly the Defense would be seeking to do with” Frances
Watson, defendant’s trial counsel said only that she would testify that she had “observed”
defendant’s “interactions” with Roxana, and the court ruled that testimony admissible.
The trial court did not exclude any evidence during Frances Watson’s testimony, so there
is no basis for defendant’s claim that any of her testimony was excluded.
Although the situation with Jaime Alfaro is more complicated, it also does not
disclose any trial court error. Defendant’s trial counsel told the court at the in limine
hearing that Jaime Alfaro would testify about his “interactions with [defendant]” about
Roxana and to “specific observations of his sister’s behavior while she was living with
23
him.” (Italics added.) Defendant’s trial counsel identified the observations that Jaime
Alfaro had made when Roxana was living with him: “She would scream. She would
throw things on the ground. She would be nonresponsive. She would wander around and
not return. She would make people uncomfortable with the way that she would, you
know, interact with or stare at nothing or clutch at random things without there being
anything to interact with.” When the court asked when it was that Roxana had lived with
Jaime Alfaro, defendant’s trial counsel expressed uncertainty and suggested that it might
have been in 2012 or 2013. In light of Jaime Alfaro’s testimony that he had no contact
with Roxana in 2012 or 2013 and that the only time she had lived with him was for two
weeks after the shooting, the defense did not establish that Jaime Alfaro’s observations of
her behavior had any relevance. In any case, the trial court certainly did not abuse its
discretion in finding under Evidence Code section 352 that any minimal relevance that
Roxana’s post-shooting behavior might have was substantially outweighed by the risk of
8
confusing the jury.
We should also point out that the court’s statements during the in limine hearing
were not the court’s final thoughts on this matter. Before the defense case even began,
the trial court provided an additional explanation of its position, which demonstrated that
it was not excluding all testimony by these witnesses about Roxana’s behaviors outside
defendant’s presence. Instead, the court explained that its position was that, under
“Evidence Code [s]ection 352, I don’t think the jury needs to hear extensive testimony
and detail from witnesses talking about her behavior and such at times when [defendant]
8
Trial courts have the discretion to exclude evidence under Evidence Code
section 352 “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.” (Evid. Code,
§ 352.) Since neither Frances Watson nor Jaime Alfaro had observed Roxana’s behavior
during the time that Roxana and defendant were living together in 2013, their
observations of her behavior had little probative value.
24
was not interacting with her or was not present.” (Italics added.) While the court
expressed a desire to limit the extent of the testimony about Roxana’s behaviors outside
defendant’s presence, it did not identify any specific testimony as inadmissible, and
defendant’s trial counsel made no attempt to clarify any limitation. Instead, she
proceeded to present testimony from not only Frances Watson and Jaime Alfaro but also
from a friend of defendant about Roxana’s behaviors in their presence, without making
any effort to explicitly demonstrate that those behaviors had taken place in defendant’s
presence. Consequently, we reject defendant’s claim that the trial court erroneously
excluded testimony by Frances Watson and Jaime Alfaro about Roxana’s behaviors
outside defendant’s presence.
C. Roxana’s Mental Health Records
Defendant also contends that the trial court’s in camera review of Roxana’s mental
health records was tainted by the court’s erroneous belief that her conduct outside of
defendant’s presence was inadmissible, and he asks this court to review the mental health
records to determine whether the court erred in failing to disclose additional documents
to the defense. Defendant argues that this evidence would have corroborated her mental
health condition and supported his provocation claim.
1. Background
The defense subpoenaed Roxana’s mental health records in advance of trial and
asked the court to review them in camera, and Roxana’s Kaiser mental health records
were provided to the court on a CD. After the court told defendant’s trial counsel at the
in limine hearing of its concerns about the admissibility of evidence of Roxana’s
behavior outside defendant’s presence, the court said “it’s for these same reasons and
where I am with the issues right now that at this time I’m not going to go in camera and
look at Roxana Watson’s records.” Defendant’s trial counsel nevertheless urged the
court to review these records. She argued that these records would provide “independent
documentation” showing that the descriptions of her conduct by defendant and “family
25
members” were not “self-serving and exaggerate[d].” The court said it would “continue
to ponder” the issue and took it under submission.
When the court returned to this issue after the prosecution rested, defendant’s trial
counsel argued that these records would provide evidence of defendant’s “interactions”
with Roxana “in the context of hospital visits and hospital stays.” She argued that these
records would also show Roxana’s diagnosis, the length of time she had been
experiencing symptoms, her medication compliance, her behavior when on or off
medication, and the consistency of her behavior. Defendant’s trial counsel told the court
that the “strongest point” she wanted to make about these records concerned the
interactions between defendant and Roxana “in the hospital context and in [the] doctor
context.” The prosecution argued that this information was mostly available from other
defense witnesses and that the remainder was irrelevant. The court then agreed to review
the records in camera.
After defendant had testified, defendant’s trial counsel argued that Roxana’s
mental health records were necessary to corroborate defendant’s testimony that Roxana
was severely mentally ill. The trial court, after reviewing Roxana’s mental health records
in camera, ruled that 15 pages of documents from Roxana’s mental health records should
9
be released to defendant. When the defense sought admission of these documents, the
prosecution objected to “hearsay statements” in these documents. The defense clarified
that it sought admission of “nonhearsay statements of [defendant]” in these documents to
show defendant’s state of mind. The court ruled that 10 of the 15 pages were admissible,
10
and they were admitted into evidence. Those 10 pages were records from 2008 through
9
The disclosed documents were initially identified as exhibit E.
10
The five pages that were not admitted were extracted from exhibit E and marked
as Court exhibit AA. Defendant does not contend that the trial court erred in ruling that
these five pages, which concerned Roxana’s 2002 hospitalization, were not admissible.
26
2010 that largely documented defendant’s statements to Kaiser clinicians about Roxana’s
behavior.
2. Analysis
Defendant asks us to review Roxana’s mental health records to determine whether
the trial court erroneously failed to disclose additional documents that would have shown
“Roxana’s general behavior, which [would] corroborate appellant’s testimony and other
admitted evidence.”
In the trial court, defendant asked the court to release documents from Roxana’s
mental health records that could demonstrate the severity of Roxana’s mental illness, her
medication compliance, her behavior both on and off medication, the consistency of her
behavior, and the interactions between defendant and Roxana “in the hospital context and
in [the] doctor context.” The documents released by the trial court consisted of records
that recounted defendant’s statements to Kaiser clinicians, which were admitted, and
records of Roxana’s 2002 hospitalization, which were not admitted.
Unfortunately, the CD containing Roxana’s mental health records has been lost by
the superior court. Thus, we cannot review those records. We asked the parties to submit
supplemental briefing addressing how we should proceed on this issue under the
circumstances. Defendant argues that we “must assume that [defendant] would have
been able to present mental health records fully corroborating his descriptions of
Roxana’s behavior and the effect of that behavior on him.” He claims that having the
trial court prepare a settled statement would not provide for meaningful review because it
is not likely that the trial court would recall details of “Roxana’s specific diagnoses by
her various doctors; her prescriptions; her dosages; the time periods associated with her
prescriptions and diagnoses; or any relevant statements she made for the purpose of
treatment.” The Attorney General, on the other hand, argues that a settled statement
would afford meaningful review and offers no other suggestions.
27
In People v. Townsel (2016) 63 Cal.4th 25, the California Supreme Court
concluded that where the record was inadequate for meaningful review of a trial court’s
in camera examination of confidential records, reversal would be required only if the
defendant had been prejudiced by the trial court’s failure to disclose additional records.
(Id. at pp. 69-71.) Under this standard, we find no cause for reversal here.
While we accept defendant’s suggestion that we should assume that additional
mental health records would have corroborated defendant’s descriptions of Roxana’s
conduct, we cannot accept his claim that we should assume that disclosure of additional
documents from Roxana’s mental health records would have corroborated “the effect of
that behavior on him.” Nothing in the record suggests that Roxana’s mental health
records could have produced admissible evidence demonstrating the impact of her
behavior on defendant. At most, those records might report defendant’s statements about
the impact of her behavior on him. Indeed, the records that were disclosed to the defense
largely reported defendant’s statements to her clinicians. And those records were
admitted at trial. We decline to assume that additional records would have done anything
more than corroborated defendant’s descriptions of Roxana’s conduct.
Defendant does not support his claim that the court’s failure to disclose additional
records corroborating his descriptions of Roxana’s conduct prejudiced him. There was
no significant dispute at trial about the nature of Roxana’s behavior. Defense witnesses
corroborated defendant’s descriptions of her behavior, and the mental health records that
were both disclosed and admitted also corroborated those descriptions. Additional
records would have been merely cumulative. Nor was there any need for additional
information about her diagnosis and prescribed medication, as the admitted records
already addressed those issues. Defendant presented unchallenged evidence that Roxana
was a paranoid schizophrenic who refused to take her medication. Accordingly, any
error by the trial court in failing to order that additional documents in Roxana’s mental
health records be disclosed to defendant was harmless.
28
D. Admissibility of Minagawa’s Testimony That Defendant was Suicidal
Defendant contends that the trial court prejudicially erred in striking Minagawa’s
testimony that defendant was suicidal at the time of the shooting.
1. Background
The prosecution brought an in limine motion seeking to preclude Minagawa from
giving testimony about defendant’s mental state at the time of the shooting. The
prosecution argued that such testimony would violate section 29. At the hearing on the
motion, defendant’s trial counsel assured the court that Minagawa “will not testify to any
forbidden statements such as this is [defendant]’s specific intent.” The court stated that it
would not permit Minagawa to “attribut[e] a certain mental state to [defendant] at the
time of the events,” and defendant’s trial counsel confirmed that it was “not the
Defense’s intention to offer” any such testimony.
During defendant’s trial counsel’s examination of Minagawa, the following
colloquy occurred: “Q. Did you consider whether or not he was suicidal or actively
considering suicide on December 3rd, 2013? [¶] A. Yes. [¶] Q. Did you believe that he
was? [¶] A. Yes.” The prosecutor objected on the grounds that the question was
“[o]utside this person’s expertise” and “goes to the ultimate conclusion.” The court
sustained the objection and struck the answer. Minagawa proceeded to testify without
objection that defendant was suffering from depression at the time of the shooting, that
his “judgment” “would be impacted” by his depression, and that he “would not be able to
regulate his emotions.”
2. Analysis
Defendant claims that neither of the stated grounds for the prosecutor’s objection
was valid. He argues that defendant’s “suicidal mental state was a relevant factor” in
Minagawa’s “diagnosis” and “within his expertise as a psychologist.” Defendant also
contends that Minagawa’s “opinion that appellant was suicidal did not go to the ultimate
conclusion” because it was not an element of the crime or a defense, and in any case
29
expert opinion testimony may permissibly address “the ultimate issue.” He claims that
the invalidity of the stated grounds means that the trial court erred in striking Minagawa’s
answer.
Defendant ignores the fact that the trial court had already ruled in limine that
Minagawa would not be permitted to testify about defendant’s mental state at the time of
the shooting. Section 29 provides: “In the guilt phase of a criminal action, any 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. The question as to whether the defendant had or did not have the
required mental states shall be decided by the trier of fact.” (§ 29.)
Defendant claims that Minagawa could properly testify that defendant was suicidal
at the time of the shooting because that state of mind “was not an element” but merely
“supported an inference that his state of mind at the time of the crime was not sufficient
to satisfy” the malice element of attempted murder. He maintains that “psychologists
have been routinely allowed to testify regarding a defendant’s state of mind at a time
prior to their examination.” None of the cases in the string cite he relies upon to support
this proposition considered whether section 29 precludes expert testimony about a
defendant’s state of mind at the time of the crime. However, in a case not cited by
defendant, People v. Herrera (2016) 247 Cal.App.4th 467, the majority held that expert
testimony about the mental state of a defendant at the time of the offense was admissible
notwithstanding section 29 so long as the expert did not testify that the defendant had or
did not have the mental state required for conviction of the offense. (Id. at p. 476.)
Even if we assume that the majority reached the correct conclusion in Herrera, we
still would not find error here. The defense had assured the court at the in limine hearing
that Minagawa would not be testifying about defendant’s state of mind at the time of the
shooting, and the defense’s examination of Minagawa did not disclose that Minagawa
30
had any source of information about defendant’s mental state at the time of the offense
other than defendant’s statements and testimony. The trial court could reasonably
conclude that Minagawa’s expertise did not extend to determining the truth of
defendant’s claim that he was suicidal at the time of the shooting. Accordingly, we reject
his claim that the trial court erred in striking Minagawa’s “Yes” answer on the ground
that it was outside Minagawa’s expertise.
E. Provocation: Instruction and Argument
Defendant argues that the trial court prejudicially erred in denying his request for a
special instruction rather than the standard CALCRIM No. 603 attempted voluntary
manslaughter instruction. He also contends that the prosecutor committed misconduct
during closing argument by stating that Roxana’s conduct could not be provocation and
that any argument that it built up over time was invalid because that would be
premeditation, and by claiming that defendant had the burden of proving that he acted in
the heat of passion.
1. Background
The defense asked the court to give a modified version of CALCRIM No. 603.
The requested instruction read: “To prove the malice element of the attempted murder
charge the prosecution must prove beyond a reasonable doubt that the defendant did not
attempt to kill because of a sudden quarrel in the heat of passion. [¶] To meet this
burden the prosecution must prove at least one of the following beyond a reasonable
doubt: [¶] 1. The defendant was not provoked [¶] OR [¶] 2. As a result of the
provocation the defendant did not act rashly and under the influence of intense emotion
that obscured his/her reasoning or judgment [¶] OR [¶] [3.] The provocation to which
defendant responded would not have caused a person of average disposition to act rashly
without due deliberation, that is, from passion rather than from judgment. [¶] Heat of
passion does not require anger, rage, or any specific emotion. It can be any violent or
intense emotion that causes a person to act without due deliberation and reflection.
31
[¶] In order for the prosecution to disprove the heat of passion and prove the defendant
guilty of attempted murder rather than attempted voluntary manslaughter, the prosecution
must prove beyond a reasonable doubt that the defendant did not act under the direct and
immediate influence of provocation as I have defined it. [¶] You must decide, if you
can, whether the defendant was unprovoked or whether the provocation was insufficient.
In attempting to decide whether the provocation was insufficient, consider whether the
provocation would have caused a person of average disposition to act rashly and without
due deliberation, that is, from passion rather than judgment.”
The court rejected this request. It instructed the jury: “An attempted killing that
would otherwise be attempted murder is reduced to attempted voluntary manslaughter if
the defendant attempted to kill someone because of a sudden quarrel or in the heat of
passion. [¶] The defendant attempted to kill someone because of a sudden quarrel or in a
heat of passion if: [¶] One, the defendant took at least one direct but ineffective step
toward killing a person; two, the defendant intended to kill that person; three, the
defendant attempted the killing because he was provoked; four, the provocation would
have caused a person of average disposition to act rashly and without due deliberation
that is from passion rather than from judgment; and, five, the attempted killing was a rash
act done under the influence of intense emotion that obscured the defendant’s reasoning
or judgment. [¶] Heat of passion does not require anger, rage, or any specific emotion.
It can be any violent or intense emotion that causes a person to act without due
deliberation and reflection. [¶] In order for a sudden quarrel or heat of passion to reduce
an attempted murder to attempted voluntary manslaughter, the defendant must have acted
under the direct and immediate influence of provocation as I have defined it. [¶] While
no specific type of provocation is required, slight or remote provocation is not sufficient.
Sufficient provocation may occur over a short or long period of time. [¶] It is not
enough that the defendant simply was provoked. The defendant is not allowed to set up
his own standard of conduct. You must decide whether the defendant was provoked and
32
whether the provocation was sufficient. In deciding whether the provocation was
sufficient, consider whether a person of average disposition in the same situation and
knowing the same facts could have reacted from passion rather than judgment. [¶] If
enough time passed between the provocation and the attempted killing for a person of
average disposition to cool off and regain his clear reasoning and judgment, then the
attempted murder is not reduced to attempted voluntary manslaughter on this basis.
[¶] The People have the burden of proving beyond a reasonable doubt that the defendant
attempted to kill someone and was not acting as a result of a sudden quarrel or in the heat
of passion. If the People have not met this burden, you must find the defendant not guilty
11
of the attempted murder.” The court also instructed the jury: “If you believe that the
attorneys’ comments on the law conflict with my instructions, you must follow my
instructions.”
The prosecutor argued to the jury: “He deliberated. It wasn’t a rash decision. It
wasn’t based on emotion. He thought of his options. He considered what he would do—
what he could do.” She also repeatedly told the jury that “[t]he Defense doesn’t have to
do anything.” When she discussed attempted voluntary manslaughter, she told the jury:
“And this concept of provocation is important because if there was no provocation then
all you have is attempted murder. It’s not reduced.” At this point, defendant’s trial
counsel objected, without stating a reason, and the court overruled the objection. The
prosecutor continued: “In order to reduce it from attempted murder to voluntary
manslaughter one of the important elements is that there be provocation. What is the
provocation? Provocation means that the defendant—the law says the defendant must
have acted under the direct and immediate provocation. It’s not, I was provoked last
year. And now I’ve thought of this provocation and I’m going to attempt to kill you this
11
The court also told the jury: “Whenever I tell you the People must prove
something, I mean they must prove it beyond a reasonable doubt.”
33
year ’cause that’s premeditated and deliberated. It has to be the direct and immediate
influence of the provocation.” The prosecutor emphasized that “[t]he provocation has to
come from the victim.” “And Roxana’s mental health and mental illness is not
provocation. Her existence and the way she lives is not provocation. The fact that she
wanders the streets is not provocation. In the same way that someone would with
Alzheimer’s not knowing who the person they’re talking to is or someone with a physical
disability, just the fact that they have that and they act that way that’s not provocation.”
At this point, defendant’s trial counsel again objected, without stating a reason, and the
trial court overruled the objection. The prosecutor continued: “They called the witnesses
to the stand they all had time throughout their relationship and you did not hear any
evidence of provocation. Certainly not evidence sufficient to have an objective person
react without thinking.” “She acts crazy everyday. That’s not provocation and that’s not
the emotion.”
The prosecutor argued: “It’s also important to note that the law says if there’s a
cooling off period, if there’s some time during which this average objective person,
again, not the defendant, but the standard we set as a society, if this average objective
person has had time to regain his judgment, then it’s not voluntary. Then it’s
premeditated. Because if you get provoked, if you find that it’s provocation and, again,
you take time to think about it, cool off, come back the next day, a week later three years
later and act on that, the objective person would have had a chance to regain their
judgment and act on that judgment not on emotion.” The prosecutor argued that
defendant’s testimony was not credible.
Defendant’s trial counsel argued to the jury: “In fact, he has no obligation to
prove he was under the influence of an intense emotion. The prosecutor has the
obligation to prove to you beyond a reasonable doubt that he wasn’t. It’s not reducing it.
She has to prove to you that he was not feeling like he wanted to die.” Defendant’s trial
counsel emphasized that the prosecution “has the burden of proving” that defendant did
34
not act in the heat of passion as a result of provocation. “[Y]ou ask, did the prosecutor
prove to me beyond a reasonable doubt that this average person confronted with
[defendant’s] impossible situation would not have acted from passion?”
The prosecutor’s final argument reiterated her view of the evidence. “The
provocation has to come from the victim. It’s not provocation builds up over time
because if it built up over time it would have been premeditated.” At this point,
defendant’s trial counsel objected without specifying a reason, and the court overruled
the objection and rejected her request to approach. The prosecutor continued: “It can
occur over a short or long period of time. If someone‘s taunting you every day, if
someone is threatening you every day for a week, that’s a long time and that’s
provocation.” “Would an average person react from passion and not judgment if
someone said, I don’t want to give you a hug.”
2. Requested Instruction
Defendant claims that the trial court prejudicially erred in refusing to give the
requested instruction because CALCRIM No. 603 “confused the jury under the totality of
the circumstances.”
He relies heavily on People v. Franklin (2018) 21 Cal.App.5th 881 (Franklin), but
the decision in Franklin is inapposite. In Franklin, the defendant was charged with
attempted murder, and the trial court instructed the jury with CALCRIM No. 603.
During deliberations, the jury submitted a request for clarification as to whether “ ‘all our
criterion [sic] need to be met for attempted voluntary manslaughter.’” (Franklin, supra,
at p. 888.) The court responded that, for defendant to be convicted of attempted
voluntary manslaughter, “ ‘the People must prove beyond a reasonable doubt all five
elements enumerated in [CALCRIM No.] 603.’ ” (Ibid.) The Court of Appeal held that
the court’s response conflicted with CALCRIM No. 603 because the response told the
jury that the prosecution bore the burden of proving provocation, when in fact the
prosecution bore the burden of proving the absence of provocation. The court did not
35
find any flaws in CALCRIM No. 603, and it explicitly noted that CALCRIM No. 603
“properly set forth the burden of proof.” (Franklin, supra, at p. 890.)
A trial court may properly refuse to give a requested instruction where the points
made in the requested instruction are adequately covered in a standard instruction that is
given. (People v. Catlin (2001) 26 Cal.4th 81, 152.) Here, the burden of proof
concerning provocation was correctly and adequately covered in the standard version of
12
CALCRIM No. 603. Nothing in the decision in Franklin suggests otherwise. While
the defense preferred the wording of the requested instruction, that preference did not
obligate the trial court to substitute the requested instruction for the correct and adequate
pattern instruction. We find no error in the trial court’s refusal to give the requested
instruction.
3. Prosecutorial Misconduct
Defendant contends that the prosecutor (1) erroneously told the jury that
“Roxana’s behavior caused by her mental health issues could not be provocation,”
(2) improperly argued that “provocation could not build up over time,” and (3) “wrongly
suggested that appellant bore the burden of proving that he acted in the heat of passion.”
“A prosecutor is given wide latitude during closing argument.” (People v.
Harrison (2005) 35 Cal.4th 208, 244.) “When the issue ‘focuses on comments made by
the prosecutor before the jury, the question is whether there is a reasonable likelihood
12
Defendant draws our attention to a footnote in Franklin, which he does not
quote in its entirety, from which he extracts just half a word (“ ‘odd[]’ ”) and purports it
to have been a characterization of the “structure” of CALCRIM No. 603. The footnote
reads: “The confusion here arises from the oddity that the circumstances listed in
CALCRIM No. 603 are not all elements of attempted voluntary manslaughter.”
(Franklin, supra, 21 Cal.App.5th at p. 889, fn. 6.) This footnote does not suggest that
CALCRIM No. 603’s unusual “structure” would have caused any “confusion” to a jury in
the absence of the Franklin trial court’s erroneous response to the jury’s inquiry.
36
that the jury construed or applied any of the complained-of remarks in an objectionable
fashion.’ ” (Ibid.)
The prosecutor did not argue that the law precluded the jury from considering
whether Roxana’s behavior constituted provocation. Instead, she argued that Roxana’s
behavior as shown by the evidence in this case “is not provocation.” We see no
impropriety in this argument. Whether Roxana’s behavior was provocation was the
critical issue in the case. The prosecutor was entitled to argue to the jury her position that
the evidence in this case did not demonstrate any provocation.
Defendant’s challenge to the prosecutor’s argument regarding the “build up” of
provocation is also meritless. The prosecutor argued that defendant could not have been
provoked by Roxana’s behavior long before the shooting because heat of passion applied
only where defendant acted under the “direct and immediate influence of the
provocation” and without a “cooling off period” during which he could have regained his
judgment. Defendant did not and does not object to these arguments. He challenges a
subsequent snippet of the prosecutor’s argument: “It’s not provocation builds up over
time because if it built up over time it would have been premeditated.” However, he fails
to acknowledge that the prosecutor followed that snippet by acknowledging that
provocation “can occur over a short or long period of time. If someone’s taunting you
every day, if someone is threatening you every day for a week, that’s a long time and
that’s provocation.” Taken in context, the jury could not reasonably have understood the
prosecutor to be arguing that a person’s behavior over time could not constitute
provocation but only that Roxana’s behavior did not constitute “built up” provocation
because defendant had had time to cool off and use judgment to plan a response.
The jury was especially unlikely to misinterpret the prosecutor’s “built up”
argument because the court had told the jury that it “must follow my instructions” if “the
attorneys’ comments on the law conflict with my instructions . . . .” The court had
instructed the jury that defendant had to have acted “under the direct and immediate
37
influence of provocation,” that “[s]ufficient provocation may occur over a short or long
period of time,” and that heat of passion did not apply “[i]f enough time passed between
the provocation and the attempted killing for a person of average disposition to cool off
and regain his clear reasoning and judgment . . . .” Under these circumstances, we find
no improper argument by the prosecutor in this regard.
Defendant’s final challenge to the prosecutor’s argument is his claim that the
prosecutor “wrongly suggested that appellant bore the burden of proving that he acted in
the heat of passion.”
Defendant first focuses on a small section of the prosecutor’s argument. After
noting that the defense was seeking an attempted voluntary manslaughter verdict, the
prosecutor argued: “An attempted voluntary manslaughter is still homicide, but it is one
that is done either in a sudden quarrel or under the heat of passion. And so it reduces it
from premeditated to voluntary manslaughter. And the idea is that if a person acts in a
sudden quarrel or the heat of passion, their conduct is not excused. You just don’t say
you are having this emotion, don’t worry about it. But we recognize it it’s not as
calculated. It’s not premeditated. [¶] To prove attempted voluntary manslaughter there
are several factors.” The prosecutor went on to observe that the first two “element[s]” of
attempted voluntary manslaughter were the same as the elements of attempted murder: a
direct but ineffective step coupled with the intent to kill. “The third element is that the
defendant attempted the killing because he was provoked. And this concept of
provocation is important because if there was no provocation then all you have is
attempted murder. It’s not reduced.” Defendant’s trial counsel objected at this point, and
the court overruled the objection.
Defendant argues that the portion of the prosecutor’s argument to which his trial
counsel objected was improper. He contends that the prosecutor’s use of the phrases “to
prove” and “reduce it” suggested that defendant bore the burden of proving heat of
passion. We agree with defendant that there was some merit to his trial counsel’s
38
objection below, as the prosecutor’s argument that provocation was an element of the
crime of attempted voluntary manslaughter and that provocation’s absence meant that the
crime was attempted murder had the potential to confuse the jury about who bore the
burden of proof of provocation. However, when the prosecutor’s entire argument is
considered in context, we do not find that the jury was likely to be misled about the
burden of proof.
The prosecutor repeatedly told the jury that the defense bore no burden: “[T]he
Defense doesn’t have to do anything.” And she never argued that the defense had failed
to prove provocation. Instead, she argued that “in this case from all the evidence you’ve
heard whether it’s by the People or by the Defense there is simply no provocation.”
“[Y]ou did not hear any evidence of provocation. Certainly not evidence sufficient to
have an objective person react without thinking.” We do not believe that in this context
the jury would have understood the prosecutor’s potentially misleading statements as
placing the burden on defendant to prove provocation when she had expressly told the
jury repeatedly that defendant had no burden and her argument was that there was not
“any evidence of provocation,” no matter its source.
Furthermore, any residual risk that the prosecutor’s argument might mislead the
jury was eliminated by the court’s instruction to the jury to credit the court’s instructions
rather than the arguments of counsel. Since the court properly instructed the jury that
“[t]he People have the burden of proving beyond a reasonable doubt that the defendant
attempted to kill someone and was not acting as a result of a sudden quarrel or in the heat
of passion,” we find there was no reasonable likelihood that the jury was actually misled
13
by the prosecutor to believe that the defense bore the burden of proving provocation.
13
Defendant also claims that another portion of the prosecutor’s argument, which
focused on the lack of evidence of provocation, suggested that the defense bore the
burden of proving provocation. The prosecutor argued: “They called the witnesses to the
stand they all had time throughout their relationship and you did not hear any evidence of
39
F. Cumulative Prejudice
Defendant also contends that there was cumulative prejudice from multiple errors.
Since we have found only one assumed error that was harmless, there is no cumulative
prejudice.
G. Life Term
The trial court imposed a term of “7 years to life,” which it also called a “term of
life with the possibility of parole after seven years” for the attempted murder count.
Defendant claims that this sentence was “unauthorized” and that the court should have
simply imposed an indeterminate term of life with the possibility of parole.
Section 664, subdivision (a) provides: “[I]f the crime attempted is willful,
deliberate, and premeditated murder, as defined in [s]ection 189, the person guilty of that
attempt shall be punished by imprisonment in the state prison for life with the possibility
of parole.” (Italics added.) Section 3046 provides that “[a]n inmate imprisoned under a
life sentence shall not be paroled until he or she has served the greater of the following:
[¶] (1) A term of at least seven calendar years.” (§ 3046, subd. (a).)
The only case defendant cites in support of his claim is People v. Robbins (2018)
19 Cal.App.5th 660. In Robbins, the Court of Appeal accepted the Attorney General’s
concession that the defendant should have been sentenced to “life with the possibility of
parole” rather than “seven years to life.” (Id. at p. 678.) However, the Court of Appeal
offered no analysis of the issue and simply cited section 664 without mentioning section
3046.
The Robbins opinion also did not mention the California Supreme Court’s
decision in People v. Jefferson (1999) 21 Cal.4th 86 (Jefferson). In Jefferson, the issue
was whether the Three Strikes law required the doubling of the minimum term for
provocation. Certainly not evidence sufficient to have an objective person react without
thinking.” Defendant’s trial counsel made no objection to this argument below, thereby
forfeiting this claim. (People v. Brown (2003) 31 Cal.4th 518, 553.)
40
attempted murder with premeditation. The California Supreme Court considered the
provisions of both section 664 and section 3046 and concluded that for doubling purposes
the sentence for attempted murder with premeditation was a life term with a seven-year
minimum term. “[T]he minimum term for a defendant found guilty of attempted
premeditated murder is found not in section 664 but in section 3046.” (Jefferson, supra,
at p. 96.) The California Supreme Court also agreed with the Attorney General that “it is
not improper for the trial court to include, as part of a defendant’s sentence, the minimum
term of confinement the defendant must serve before becoming eligible for parole. . . . By
including the minimum term of imprisonment in its sentence, a trial court gives guidance
to the Board of Prison Terms regarding the appropriate minimum term to apply, and it
informs victims attending the sentencing hearing of the minimum period the defendant
will have to serve before becoming eligible for parole.” (Id. at p. 101, fn. 3.)
Defendant points out that Jefferson is not directly on point because it dealt with
the Three Strikes law, but we find the California Supreme Court’s analysis in Jefferson
persuasive even outside the Three Strikes context. We conclude that a trial court may
properly “include, as part of a defendant’s sentence, the minimum term of confinement
the defendant must serve before becoming eligible for parole” so as to give “guidance to
the Board of Prison Terms regarding the appropriate minimum term to apply . . . .”
(Jefferson, supra, 21 Cal.4th at p. 101, fn. 3.) Moreover, we fail to discern how the trial
court’s characterization of defendant’s life sentence could have any impact on him. His
indeterminate life sentence was statutorily required to have a minimum term of seven
years regardless of how the trial court characterized the sentence. We reject defendant’s
claim.
H. Mental Health Diversion
Defendant was sentenced in 2017. In June 2018, the Legislature enacted
section 1001.36, “which created a pretrial diversion program for certain defendants with
mental health disorders. (Stats. 2018, ch. 34, § 24.)” (People v. Frahs (2020) 9 Cal.5th
41618, 624 (Frahs).) In Frahs, the California Supreme Court held that section 1001.36
applies retroactively to all cases that were not final when that section was enacted.
(Frahs, supra, at pp. 630-637.) Defendant’s case is not yet final, and there was evidence
that he suffers from a qualifying mental health disorder. The California Supreme Court
held that the appropriate remedy in such cases is a remand for the trial court to consider
the defendant’s eligibility for diversion under section 1001.36. (Frahs, supra, at p. 641.)
The Attorney General concedes that such a remand is required in this case, and we agree
that the California Supreme Court’s decision in Frahs compels a remand here.
I. Firearm Enhancement
When defendant was sentenced in August 2017, the trial court lacked discretion to
strike the section 12022.53 firearm enhancement. (Former § 12022.53.)
Section 12022.53 was amended, effective January 1, 2018, to add section 12022.53,
subdivision (h). (Stats. 2017, ch. 682, § 2.) Section 12022.53, subdivision (h) grants trial
courts discretion to strike section 12022.53 enhancements, and it has been held
retroactive to all cases that were not yet final when it took effect. (People v. Watts (2018)
22 Cal.App.5th 102, 119 (Watts).) In Watts, the Court of Appeal held that the appropriate
remedy was a remand for the trial court to exercise its discretion under section 12022.53,
subdivision (h). (Watts, supra, at p. 120.) Defendant’s case is not yet final, and he seeks
a remand for the trial court to exercise its discretion under section 12022.53,
subdivision (h). The Attorney General concedes that a remand for this purpose is
appropriate, and we agree.
VI. DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court with
directions. On remand, the trial court shall first consider mental health diversion. “ ‘If
the trial court finds that [defendant] suffers from a mental disorder, does not pose an
unreasonable risk of danger to public safety, and otherwise meets the six statutory criteria
(as nearly as possible given the postconviction procedural posture of this case), then the
42
court may grant diversion. If [defendant] successfully completes diversion, then the court
shall dismiss the charges.’ ” (Frahs, supra, 9 Cal.5th at p. 641.) If the court “determines
that [defendant] does not meet the criteria under section 1001.36, or if [defendant] does
not successfully complete diversion” (ibid.), then the court shall exercise its discretion
under section 12022.53, subdivision (h). If the court decides not to strike the
section 12022.53 enhancement, it shall reinstate the judgment. If the court strikes the
section 12022.53 enhancement, it shall file an amended abstract of judgment and forward
a certified copy to the Department of Corrections and Rehabilitation.
43
_______________________________
ELIA, ACTING P.J.
WE CONCUR:
_____________________________
BAMATTRE-MANOUKIAN, J.
_____________________________
DANNER, J.
People v. Watson
H045141