People v. Schmidt CA4/1

Filed 3/25/21 P. v. Schmidt CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076806
Plaintiff and Respondent,
v. (Super. Ct. No. SCN370653)
MIKHAIL SCHMIDT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Harry M. Elias, Judge. Affirmed and remanded with directions.
Eric R. Larson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Julie L.
Garland, Assistant Attorneys General, Charles C. Ragland and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Mikhail Schmidt with one count of murder (Pen.
Code,1 § 187, subd. (a)) and found true special circumstance allegations that
1 Undesignated statutory references are to the Penal Code.
Schmidt intentionally killed the victim by means of lying in wait (§ 190.2,
subd. (a)(15)), and further that he personally used a knife in the commission
of the murder (§ 12022, subd. (b)(1)). Following a bifurcated sanity phase,
the jury found Schmidt was sane when he committed the murder. The court
sentenced Schmidt to life in prison without the possibility of parole plus one
year for the knife use enhancement, in addition to a restitution fine and a
suspended $10,000 parole revocation fine under section 1202.45. Schmidt
contends his conviction and the jury’s special circumstance finding must be
reversed due to prejudicial instructional errors regarding mental impairment
and voluntary intoxication. He contends that if we do not reverse his
conviction and the special circumstance finding, we should strike the parole
revocation fine because he was sentenced to life without the possibility of
parole. The People concede the latter point, and we agree the court must
strike that fine. Otherwise, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
In 2017, victim J.B.’s coworker found J.B. stabbed to death outside the
construction-site trailer where they were staying. Responding police found
blood stains inside the trailer and a trail of blood leading away from it.
Pathologists determined J.B.’s blood alcohol content was 0.29 percent at the
time of his death.
The next day, Schmidt admitted to killing J.B. to his employer M.H.,
who was also a personal friend. That day, M.H. noticed something “off” about
Schmidt, and overheard Schmidt on his phone saying he should not be
talking without a lawyer. M.H. suspected Schmidt had been drinking and
Schmidt admitted it. Schmidt initially told M.H. he was on the phone with
someone investigating him for war crimes, and talked about his experience in
2
the military killing people. Schmidt also claimed to be working for an
organization called “Agent Orange,” which gave him instructions to hurt
others. Schmidt then admitted he had killed J.B., going into “graphic detail”
about the interaction and killing. M.H. had heard about the previous night’s
murder and prodded Schmidt for information. Schmidt said he had been
“looking for trouble” and trying to find someone “alone and vulnerable.”
Schmidt told M.H. he saw J.B., who seemed drunk, and followed him back to
the construction site and into the trailer. Schmidt threw a paint brush inside
to see if it would startle or wake anyone up, then when nothing happened,
proceeded to stab J.B. in the ear and also in the kidney specifically to stop
him from screaming. When M.H. pressed Schmidt about the conflict between
his Agent Orange story and his description of how he encountered J.B.,
Schmidt said, “Would you believe me if I told you that everything about the
Agent Orange was . . . total bullshit?” When M.H. said yes, Schmidt
admitted it was “totally random”; that he found and followed J.B. M.H.
asked Schmidt to go for a walk outside together, but beforehand told his wife
to lock the store doors and call police, who eventually arrested Schmidt.
Following his arrest, police interviewed Schmidt. He initially denied
killing the victim and telling M.H. about it, but eventually gave officers a
detailed account of his actions before and during the crime, consistent with
what he told M.H.2 Schmidt explained: “It was random. It really was. Uh,
there was no rhyme or reason behind why I chose him. Um, lately I’ve been
just like tasting blood, like I needed that thrill again. I did. And last night, I
don’t know where it came from. I honestly, I don’t know what came over me.
2 The jury viewed Schmidt’s videotaped interview, which he gave after
police read him his Miranda rights. (Miranda v. Arizona (1966) 384 U.S.
436.)
3
Um, so yeah, I went. I left my house with that intention to do harm.”
Schmidt told officers he “crept into the fucking trailer and that was that,
boom. . . . I knew there was blood on the way out. But damn, I did not think
about the phone GPS. I did not, I wiped my whole fucking car down with
Lysol last night, except for the fucking outside. I mean I, I played, I played
this whole thing out in my head so many fucking times, of how to, how to do
it. And my biggest fault is that I needed to let someone know, so I told
[M.H.]. That was my biggest fault. That was my downfall, that I needed
recognition for, and I have completely ruined everything I had, just off of one
night of fucking just pain.” A blood sample taken from Schmidt at the
conclusion of his police interview was determined to have an alcohol content
of 0.092 percent.
Defense Evidence
At trial, Schmidt presented a neurologist expert who testified he
suffered from brain abnormalities consistent with PTSD, as well as psychotic
and mood disorders. He presented a psychiatrist expert who opined Schmidt
had experienced some form of trance, loss of consciousness, seizure, “highly
altered mental state” or altered consciousness.3 However, the expert
explained that alcohol would suppress seizures and allow an addicted person
to function better: “Alcohol suppresses seizures. Alcohol withdrawal causes
seizures. And typically you have to be highly dependent on alcohol—highly
dependent meaning you wake up in the morning and your neurologic system
doesn’t work; you can’t coordinate until you have another drink, and then you
can move your hands and legs in a coordinated fashion. That’s when people
are addicted to alcohol.”
3 Schmidt and the People presented expert evidence in the sanity phase
of trial, which is not at issue on appeal.
4
Schmidt testified in his defense that he became a daily drinker by 2014,
and sought help. He relapsed into consistently drinking alcohol in 2017.
According to Schmidt, he committed the killing during a five-hour black-out
period after Agent Orange, a counterterrorism government agency,
“activated” or hired him through “nanobot” controllers that were injected into
his brain. He remembered seeing the victim, identifying him as a target that
the agency wanted him to eliminate, and following him through the
construction site gate. He recalled stabbing the victim once in the ear and
twice in the kidney. After the killing, Schmidt remembered cleaning his
knife. He testified he saw these things from a “bird’s eye view.” The next
morning he thought it was a dream, but then realized it was not after finding
his clothes in the dryer and seeing yellow tape at the construction site. At
that time, panic set in and he bought a bottle of alcohol. Schmidt denied
telling the truth to police when he said he was feeling the need to taste blood
or had the urge to kill, but he could not explain why he made those
statements to police.
Rebuttal
In rebuttal, the People presented a clinical psychologist who testified
that Schmidt exhibited traits of grandiosity, glib superficial charm, a need for
stimulation, and pathological lying, for which he scored the highest on her
tests. She opined that Schmidt was manipulative and not particularly
impulsive, but his actions were “planned out and calculated” in that he
considered the pros and cons before doing things. The prosecution also
presented Schmidt’s Marine Corps commanding officer who rebutted a
number of things.
The trial court gave the jury the following instruction regarding
voluntary intoxication based on CALCRIM No. 625: “You may consider
5
evidence, if any, of the defendant’s voluntary intoxication only in a limited
way. You may consider the evidence only in deciding whether the defendant
acted with an intent to kill, the defendant acted with deliberation and
premeditation, or the defendant was unconscious when he acted. A person is
voluntarily intoxicated if he or she becomes intoxicated by willingly using any
intoxicating drug, drink, or other substance knowing that it could produce an
intoxicating effect, or willing to [sic] assume the risk of that effect. You may
not consider evidence of voluntary intoxication for any other purpose.”
The trial court also instructed the jury with a modified version of
CALCRIM No. 3428 as follows: “You have heard evidence that the defendant
may have suffered from a mental disease or defect or disorder. You may
consider this evidence only for the limited purpose of deciding whether at the
time of the charged crime the defendant acted with the intent or mental state
required for that crime. The People have the burden of proving beyond a
reasonable doubt that the defendant acted with the required intent or mental
state, specifically malice aforethought. If the People have not met this
burden, you must find the defendant not guilty of murder. The People have
the burden of proving beyond a reasonable doubt that the defendant acted
with the required intent or mental state, specifically: intent to kill, as it
relates to the special circumstance of lying in wait. If the People have not
met this burden, you must find the defendant not guilty of the special
circumstance or murder by means of lying in wait.”
Defense counsel did not object to the giving of these instructions, nor
did he raise any issue or objection about them during the jury instruction
conference.
6
DISCUSSION
I. Instructional Error Claims
Schmidt raises two claims of instructional error. He first contends the
modified version of CALCRIM No. 3428 read to the jury regarding mental
impairment erroneously failed to provide that the evidence of mental disease,
defect, or disorder applied not only to malice aforethought, but also to the
elements of premeditation and deliberation. He additionally contends the
version of CALCRIM No. 625 given to the jury regarding voluntary
intoxication erroneously failed to instruct jurors they could consider the
evidence of his voluntary intoxication in evaluating the accuracy and
reliability of the statements he made during his post-arrest police
interrogation. Schmidt maintains that based on the evidence and the
prosecutor’s closing argument, the instructional errors were prejudicial and
his conviction should be reversed.
A. Forfeiture
Schmidt’s counsel did not object to either instruction given, nor did he
ask for clarification, amplification or further modification to encompass the
additional issues mentioned above. Given the omission, the People respond
that Schmidt forfeited the instructional errors. The People argue that the
sole inquiry is whether the claim of error affected Schmidt’s substantial
rights under section 1259, which they equate with asking whether the
instruction resulted in a miscarriage of justice. They argue it is not
reasonably likely that Schmidt would have received a different outcome had
his counsel sought amplification of the instructions.
We agree with the People in part, that is, we agree the claims are
forfeited, but there is no need to assess the instructions’ impact on Schmidt’s
substantial rights. In People v. Buenrostro (2018) 6 Cal.5th 367, the
7
California Supreme Court suggested a limit on section 1259’s application in
addressing the Attorney General’s claim of forfeiture, explaining: “In
general, a defendant may raise for the first time on appeal instructional error
affecting his or her substantial rights. [Citation.] But ‘[a] party may not
argue on appeal that an instruction correct in law was too general or
incomplete, and thus needed clarification, without first requesting such
clarification at trial.’ ” (Id. at p. 428, italics added; see also People v.
Covarrubias (2016) 1 Cal.5th 838, 901, 906, 911, 913 [holding forfeiture rule
applies to failure to request clarifying or amplifying language to an
incomplete instruction without applying section 1259]; People v. Jackson
(2016) 1 Cal.5th 269, 336 [same]; People v. Williams (2015) 61 Cal.4th 1244,
1286; but see People v. Townsel (2016) 63 Cal.4th 25, 59-60 [invoking section
1259 to review defendant’s claim that predecessor jury instruction to
CALCRIM No. 3428 was incomplete without identifying premeditation and
deliberation as mental states]; People v. Rodgers (2006) 39 Cal.4th 826, 881,
fn. 28 [same].) In Buenrostro, the defendant claimed that the challenged
instruction improperly permitted the jury to find her guilty based on evidence
of motive alone. (Buenrostro, 6 Cal.5th at p. 428.) The high court held the
claim was forfeited because, “at bottom, it is an argument that the
instruction was incomplete” and thus the “[d]efendant was obligated to
request a clarifying instruction [but] failed to do so, thereby forfeiting her
appellate challenge.” (Ibid.) The defendant made additional claims that
other instructions were incorrect. (Ibid.) As to those claims, the California
Supreme Court held they were reviewable despite the lack of an objection
below. (Ibid.)
Thus, while courts will not find a forfeiture when a defendant claims
the court gave a jury instruction incorrect in law (People v. Buenrostro, supra,
8
6 Cal.5th at p. 428; People v. Gomez (2018) 6 Cal.5th 243, 312), this is not the
claim Schmidt makes here. As to the voluntary intoxication instruction,
Schmidt admits the jury in his case “was properly told the voluntary
intoxication evidence applied to the elements of intent to kill, premeditation,
and deliberation . . . .”4 His claim is that the jury should have been
instructed that the evidence also was relevant to its evaluation of his
truthfulness or the reliability of his statements to police. With respect to the
mental impairment instruction, Schmidt’s claim is likewise that it should
have additionally encompassed premeditation and deliberation, not just
intent to kill or malice aforethought.
Schmidt argues forfeiture is not applicable to his challenges because
the error fell within the trial court’s sua sponte duty to correctly instruct the
jury on general principles of the law or elements of the offense. But here, the
trial court gave otherwise correct instructions. The cases Schmidt cites,
including People v. Montoya (1994) 7 Cal.4th 1027, 1047 [“a trial court must
instruct on general principles of law that are commonly or closely and openly
connected with the facts before the court and that are necessary for the jury’s
understanding of the case”] and People v. Hillhouse (2002) 27 Cal.4th 469,
503 [the trial court has a sua sponte duty to correctly instruct on all elements
of the charged offenses] predate Buenrostro and do not convince us that the
forfeiture rule is inapplicable here. In People v. Chavez (2018) 22
Cal.App.5th 663, this court addressed a defendant’s claim of error in failing
to instruct the jury fully on self-defense, specifically, by failing to include
bracketed language within the instruction pertaining to an aggressor’s right
to use self-defense when he initially uses nondeadly force, but the opponent
4 This court has held that CALCRIM No. 625 is a correct statement of
the law. (People v. Turk (2008) 164 Cal.App.4th 1361, 1381.)
9
counters with deadly force. (Id. at p. 692.) Chavez did not address forfeiture
or waiver, and it involved the alleged failure to instruct on a theory of the
case, implicating the court’s sua sponte obligation. Chavez does not prevent
us from concluding that forfeiture applies to Schmidt’s claim here that
otherwise correct jury instructions were incomplete.
We need not further discuss the issue, because even if we were to
address the merits of Schmidt’s claims, we would reject them.
B. CALCRIM No. 3428
There is no merit to Schmidt’s challenge to the court’s failure to modify
CALCRIM No 3428 sua sponte. We assess independently whether
instructions correctly state the law (People v. Posey (2004) 32 Cal.4th 193,
218), considering the instructions as a whole as we must. (People v. Tate
(2010) 49 Cal.4th 635, 696.) As to prejudice, we review under the Watson
(People v. Watson (1956) 46 Cal.2d 818) harmless error standard claims of
“ ‘ “ ‘incorrect, ambiguous, conflicting, or wrongly omitted instructions that do
not amount to federal constitutional error . . . .’ ” [Citations.] ‘[U]nder
Watson, a defendant must show it is reasonably probable a more favorable
result would have been obtained absent the error.’ [Citation.] [¶] . . . [¶]
Further, the Watson test for harmless error ‘focuses not on what a reasonable
jury could do, but what such a jury is likely to have done in the absence of the
error under consideration. In making that evaluation, an appellate court
may consider, among other things, whether the evidence supporting the
existing judgment is so relatively strong, and the evidence supporting a
different outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected the result.’ ”
(People v. Beltran (2013) 56 Cal.4th 935, 956; see People v. Watt (2014) 229
10
Cal.App.4th 1215, 1219-1220 [Watson standard applies to instructional error
by failing to instruct or giving an erroneous instruction].)
The court correctly instructed the jury with the pattern version of
CALCRIM No. 3428 that evidence of mental disorder could be considered “for
the limited purpose of deciding whether, at the time of the charged crime, the
defendant acted with the intent or mental state required for that crime.” The
court additionally separately defined first degree murder for the jury with
CALCRIM No. 521,5 which included instructions regarding premeditation
and deliberation for purposes of one of the theories advanced by the People
for first degree murder: “The defendant is guilty of first degree murder if the
People have proved that he acted willfully, deliberately, and with
5 The court instructed the jury: “The defendant has been prosecuted for
first degree murder as charged in Count 1 under two theories: First, that the
murder was willful, deliberate, and premeditated; and, second, that the
murder was committed by lying in wait. Each theory of first degree murder
has different requirements, so I will instruct you on both. [¶] You may not
find the defendant guilty of first degree murder unless all of you agree that
the People have proved the defendant committed murder as defined as first
degree. You need not all agree as to the same theory. So let me define for
you deliberation and premeditation.” The court then read CALCRIM No. 521
more fully on premeditation and deliberation as follows: “The defendant is
guilty of first-degree murder if the People have proved that he acted willfully,
deliberately, and with premeditation. The defendant acted willfully if he
intended to kill. The defendant acted deliberately if he carefully weighed the
considerations for and against his choice and, knowing the consequences,
decided to kill. The defendant acted with premeditation if he decided to kill
before completing the act that caused death. [¶] The length of time the
person spends considering whether to kill does not alone determine whether
the killing is deliberate and premeditated. The amount of time required for
deliberation and premeditation may vary from person to person and
according to the circumstances. A decision to kill made rashly, impulsively,
and without careful consideration is not deliberate and premeditated. On the
other hand, a cold, calculated decision to kill can be reached quickly. The test
is the extent of the reflection, not the length of time.”
11
premeditation. The defendant acted willfully if he intended to kill. The
defendant acted deliberately if he carefully weighed the considerations for
and against his choice and, knowing the consequences, decided to kill. The
defendant acted with premeditation if he decided to kill before completing the
act that caused death.” Read together, these instructions gave the jury the
ability to assess the mental disorder evidence on the issue of whether
Schmidt premeditated or deliberated. “ ‘ “[T]he fact that the necessary
elements of a jury charge are to be found in two instructions rather than in
one instruction does not, in itself, make the charge prejudicial.” [Citation.]
“The absence of an essential element in one instruction may be supplied by
another or cured in light of the instructions as a whole.” ’ ” (People v. Bolin
(1998) 18 Cal.4th 297, 328; see also People v. Sanchez (2001) 26 Cal.4th 834,
852 [jurors are presumed able to “understand and correlate” instructions and
to have followed the court’s instructions].)
This was the conclusion of the California Supreme Court in People v.
Townsel (2016) 63 Cal.4th 25 and People v. Rogers, supra, 39 Cal.4th 826, in
which the defendants advanced similar claims as Schmidt does here: that the
court erred by failing to identify premeditation and deliberation when
instructing with CALJIC No. 3.32, the predecessor instruction to CALCRIM
No. 3428. (People v. Townsel, at pp. 58-59; People v. Rogers, at p. 880.) In
Townsel, the court instructed the jury with CALJIC No. 3.32 on how it could
apply evidence of mental defect or disorder to the charges before it, which
included murder, dissuading a witness, and witness-killing as a special
circumstance. As Schmidt does here, the defendant in Townsel contended
that the instruction given, directing the jurors to consider that evidence
“solely” in determining whether the defendant “ ‘actually formed the mental
state which is an element of . . . murder’ ” (Townsel, at p. 59), limited the
12
jury’s consideration to malice aforethought, precluding its consideration of
the evidence on the question of premeditation and deliberation. The
Supreme Court—applying People v. Rogers, 39 Cal.4th 826—rejected this
position and found the instruction sufficient with respect to premeditation
and deliberation, explaining that once the jury found malice, it was directed
to make the further finding of premeditation and deliberation, which
undisputedly was a mental state. (Townsel, at pp. 62-63.) In Rogers, the
defendant, who was found guilty of first degree murder with a multiple
murder special circumstance, argued the trial court should have specified
premeditation and deliberation as mental states to which his mental health
evidence was relevant. (Ibid.) The Rogers court rejected the argument: “We
previously have rejected claims that a trial court erroneously failed to
identify premeditation and deliberation as a mental state to which evidence
of mental disease or defect was relevant, in cases where the trial court either
explained that premeditation and deliberation were mental states necessary
for a conviction of first degree murder [citations] or instructed that ‘ “the
mental state required is included in the definition of the crime charged” ’
[citation]. We also have rejected a similar claim regarding the instruction
relating voluntary intoxication to mental state. [Citation.] In the foregoing
cases, in light of full instructions defining first degree murder including an
explanation of premeditation and deliberation, we concluded ‘a reasonable
jury would have understood that the requisite mental states (as set forth in
the definitions of the crimes) were the same “mental states” that could be
considered in connection with the evidence of defendant’s mental disease,
defect, or disorder.’ ” (Id. at p. 881.)
In reply, Schmidt distinguishes People v. Rogers on grounds the court
there instructed the jury it could consider mental impairment on “whether or
13
not the defendant actually formed the mental state which is an element of
the crimes charged in the information” (People v. Rogers, supra, 39 Cal.4th at
p. 880), but here, the court specified “intent to kill” and “malice aforethought”
as the mental states to which the evidence was relevant. But the instruction
in this case did tell the jury that it could consider the mental impairment
evidence for the purpose of deciding “whether, at the time of the charged
crime, the defendant acted with the intent or mental state required for that
crime.” Schmidt’s effort to distinguish Rogers is not persuasive, and like the
court there, we likewise presume the jurors associated the “intent or mental
state” required for “the charged crime” with the mental elements of first
degree murder, including premeditation and deliberation, which the court
had already defined pursuant to CALCRIM No. 521.
In sum, we see no likelihood that the jury, considering CALCRIM No.
3428 in the context of the entire body of instructions on first degree murder,
would have misunderstood the instruction as meaning it could not consider
Schmidt’s mental impairment, if any, when determining whether he killed
with premeditation and deliberation.
Finally, even if we were to determine there was some error, it is
harmless in view of the jury’s true finding on the special circumstance
allegation that Schmidt killed J.B. by lying in wait. That finding alone
designated the crime as one of first degree murder. “ ‘Lying in wait is the
functional equivalent of proof of premeditation, deliberation, and intent to
kill.’ . . . Once a sufficient period of watching and waiting is established,
together with the other elements of lying-in-wait murder, no further evidence
of premeditation and deliberation is required in order to convict the
defendant of first degree murder.” (People v. Sandoval (2015) 62 Cal.4th 394,
416; see also People v. Wright (2015) 242 Cal.App.4th 1461, 1496 [showing of
14
lying in wait makes unnecessary separate proof of premeditation and
deliberation].) The court included “intent to kill, as it relates to the special
circumstance of lying in wait” as part of CALCRIM No. 3428 on the use of
defendant’s asserted mental impairment. We conclude any misdirection of
the jury as to premeditation and deliberation would not have altered the
verdict.
C. CALCRIM No. 625
Schmidt contends the version of CALCRIM No. 625 given was
incomplete and erroneous because it improperly limited the jury’s
consideration of voluntary intoxication evidence to the elements of intent,
deliberation and premeditation, or whether he was unconscious when he
acted. Citing People v. Wiidanen (2011) 201 Cal.App.4th 526, he maintains
that based on this record, the voluntary intoxication evidence was also
relevant to the jury’s evaluation of the veracity and reliability of the
incriminating statements he made during his police interview. Schmidt
argues the error was prejudicial and compels reversal of his first degree
murder conviction as well as the special circumstance finding because it
“struck directly at the heart of [his] defense based on mental disease and
defect.” He maintains he presented a credible mental disease or defect
defense, and points to evidence that he was an Iraq war veteran diagnosed
with PTSD; his crime was nonsensical, suggesting mental illness; and the
evidence of intent to kill was strong and consistent with his killing for the
“thrill of it” or at “Agent Orange’s” direction. According to Schmidt, had the
jury been properly instructed on his mental disease defense, there is a
reasonable probability it would have found that though he acted with the
intent to kill, he did not do so with the requisite deliberation and
premeditation necessary for first degree murder or the lying-in-wait
15
allegation. Schmidt argues the erroneous voluntary intoxication instruction
compounded the prejudice due to the prosecution using his voluntary
intoxication to undercut his defense by suggesting it was fabricated since he
did not talk about Agent Orange when he was being interviewed by police
while intoxicated.
For the reasons expressed above, we agree with the People that
Schmidt forfeited the claim by failing to ask that the instruction be
supplemented or augmented. (People v. Buenrostro, supra, 6 Cal.5th at p.
428; People v. Covarrubias, supra, 1 Cal.5th at pp. 901, 906, 911, 913; People
v. Jackson, supra, 1 Cal.5th at p. 336.)
To forestall Schmidt’s ineffective assistance of counsel claim, however,
we will address the merits and assume the court erred by failing to sua
sponte modify the voluntary intoxication instruction as Schmidt contends.6
Schmidt argues we should assess prejudice as if the error deprived him of
instructions on an applicable defense and apply the Chapman (People v.
Chapman (1967) 386 U.S. 18) standard of prejudice for federal constitutional
error. We do not see Schmidt’s claims of incomplete jury instructions on the
issues of mental defect and voluntary intoxication as the absence of jury
instructions on a defense or as preventing Schmidt from presenting a
defense. And the California Supreme Court has held that instructional error
6 The People concede that under People v. Wiidanen, supra, 201
Cal.App.4th at p. 533, intoxication has relevance to the question of
awareness, familiarity, understanding, and the ability to recognize and
comprehend. However, the law as to voluntary intoxication, section 29.4,
subdivision (b), does not say voluntary intoxication is relevant to a
defendant’s veracity. (§ 29.4, subd. (b) [“Evidence of voluntary intoxication is
admissible solely on the issue of whether or not the defendant actually
formed a required specific intent, or, when charged with murder, whether the
defendant premeditated, deliberated, or harbored express malice
aforethought”].)
16
restricting a jury’s consideration of voluntary intoxication amounts to state
law error. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 187; People v.
Mendoza (1998) 18 Cal.4th 1114, 1134-1135.) Under the circumstances, we
reverse only if we find a reasonable probability the error affected the verdict
adversely to Schmidt. (Letner, at p. 187.)
While Schmidt maintains the instructional errors struck at the heart of
his mental deficiency defense, we have already concluded that the court
properly instructed the jury as to that defense. We need only address
Schmidt’s claim that the voluntary intoxication instruction “was used by the
prosecution to undercut his [mental deficiency] defense at trial by suggesting
it was fabricated because he did not say these same things about Agent
Orange while he was intoxicated and being interviewed by police.” Schmidt
refers to the prosecutor’s closing arguments at pages 1287 to 1289, but in
none of the closing remarks on those pages did the prosecutor refer to the
voluntary intoxication instruction or Schmidt’s intoxication at all. Finally, in
view of Schmidt’s conduct after the killing, wiping down his vehicle and
cleaning his clothing, as well as his concession to M.H. that the Agent Orange
story was “total bullshit,” Schmidt’s mental deficiency defense was weak
already. On this record, Schmidt has not demonstrated prejudice.
As for the effect of voluntary intoxication on Schmidt’s veracity or
reliability of his statements to police, neither Schmidt nor his own defense
expert testified or even suggested at trial that his intoxication impacted his
statements to police. As summarized above, Schmidt’s defense medical
expert explained that alcohol would suppress seizures and allow an alcoholic
to become more functional. Schmidt himself was asked about the truth of his
statements to police and did not say they were influenced in any way by
17
alcohol.7 Additionally, the jury heard M.H. testify about Schmidt confessing
to killing J.B. consistent with what Schmidt told police. We cannot say on
this record there is a reasonable probability the jury would have reached a
verdict more favorable to Schmidt had the trial court instructed it to consider
his intoxication on the veracity or reliability of his statements to police.
II. Parole Revocation Fine
Schmidt contends his parole revocation fine must be stricken from his
sentence because he was sentenced to life without the possibility of parole, for
which such a fine is inapplicable. (People v. Jenkins (2006) 140 Cal.App.4th
805, 819.) The People concede the error and we agree; “a parole revocation
fine is not applicable where there is no possibility of parole.” (People v.
DeFrance (2008) 167 Cal.App.4th 486, 505.)
7 Schmidt gave the following testimony after being asked: “Do you recall
telling [the detective] that you felt you needed a taste for blood?” [¶]
[Schmidt]: Yes. Okay. [¶] [Defense counsel:] That you needed that thrill
again; you had the edge? [¶] [Schmidt:] Yes. [¶] [Defense counsel:] Why
did you say that? [¶] [Schmidt]: You know, I’ve been kicking myself for that
for the last two and a half years. The worst thing to ever say to a prosecutor,
I guess, or detective. But in my—in my head it didn’t feel like this whole
thing was real—it still doesn’t feel real. And so I said the first thing that
came to my head was wanted to taste blood again which, you know, you hear,
like, in a Rambo movie or something. [¶] But, like, I can’t say why I said
that. It’s not like there’s an itch or a feeling like that in me. It’s my own
little world is happening. [¶] [Defense counsel:] Was there any truth to the
fact that you were feeling the need to taste blood—[¶] . . . [¶] . . . or the urge
to kill? [¶] [Schmidt:]—no because I’ve never had this before and—I would
say no, there’s not.”
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DISPOSITION
The matter is remanded and the trial court directed to strike the parole
revocation fine imposed under section 1202.45 and forward a certified copy of
the corrected abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
O’ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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