PEOPLE v. MAHLER

No. B220082.

THE PEOPLE, Plaintiff and Respondent, v. DAVID MAHLER, Defendant and Appellant.

Court of Appeals of California, Second District, Division Seven.

Filed September 7, 2011.


Attorney(s) appearing for the Case

Deborah L. Hawkins and Mark L. Christiansen , under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr. , and Kamala D. Harris , Attorneys General, Dane R. Gillette , Chief Assistant Attorney General, Pamela C. Hamanaka , Senior Assistant Attorney General, Paul M. Roadarmel, Jr. , Steven D. Matthews and David F. Glassman , Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

David Mahler was convicted of the second degree murder (Pen. Code,1 § 187) of Kristen Baldwin and of assault with a firearm against Donald Van Develde (§ 245, subd. (a)(2)). We are compelled to reverse the murder conviction because the trial court improperly instructed the jury on felony murder, and nothing in the jury verdict establishes that the jury relied instead on a proper legal basis to convict Mahler of murder. In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

David Mahler shot and killed Kristin Baldwin in the early morning hours of May 27, 2007, at his house in the Hollywood Hills.

I. Events Prior to May 27, 2007

Dale Pearlman, a business associate of Mahler, reported that on May 23, 2007, he had met with Mahler in Newport Beach. Baldwin was with Mahler. The meeting went late, past midnight, and Pearlman offered Mahler a stay at the Island Hotel. Pearlman drove to the hotel in his car; Mahler and Baldwin followed.

In the early morning hours of May 24, 2007, Mahler checked into the Island Hotel while accompanied by Baldwin. Later that day, Mahler spoke with Pearlman by phone several times. First, Mahler said he loved Baldwin; later he said he hated her. Mahler was angry at Baldwin and enlisted Pearlman in locating transportation for Baldwin, saying, "`We've got to get that bitch out of here. I don't want to pay for a cab or a limo.'" It seemed to Pearlman that Mahler and Baldwin had some sort of argument.

On May 25, 2007, Mahler checked out of the room. He told the hotel staff that he was leaving, that Baldwin remained in the room, and that he would not be financially responsible for her. Hotel staff found Baldwin in the room, crying and emotional, upset that Mahler had left and that she had no way home. Baldwin left the hotel late that night in a taxicab.

II. May 27, 2007

Mahler shared a large house in the Hollywood Hills with several co-tenants. Early on the morning of May 27, 2007, tenant Donald Van Develde went to Mahler's part of the house seeking payment for some jobs he had performed for Mahler. Baldwin let him in; she said that Mahler was away temporarily. Baldwin was using crystal methamphetamine at the time and gave Van Develde, a drug addict, a line. Van Develde had seen Baldwin four or five times previously.

Mahler returned, "very, very upset" at several people, including Baldwin. He was yelling about a person named "Rick." Mahler asked Van Develde to leave so that he could speak with Baldwin about something; Van Develde's impression was that the conversation would be about Rick. Van Develde left, but shortly thereafter he and Mahler spoke on the phone and he returned to Mahler's bedroom.

When Van Develde returned to Mahler's room, Baldwin was sitting on the floor in front of the fireplace looking through her bags. Mahler, naked underneath an open white bathrobe, was walking around the room. Mahler appeared to be "out of his mind." He was smoking cocaine, and using crystal methamphetamine, Xanax, wine, cigarettes, and possibly Vicodin. He was walking around and talking gibberish.2

Mahler went to a closet or dresser and returned with a gun. Mahler, "a crazed lunatic," waved the gun around chaotically. He was screaming, ranting, and yelling. He pointed the gun "everywhere," including at Baldwin and at Van Develde. Mahler charged at her and pulled the trigger several times. The gun, at that point, was not loaded. From what Van Develde could gather, Mahler was upset because he believed that he was being set up by someone. Van Develde tried to calm Mahler down. Mahler picked up a bullet and held it in his hand. He placed the bullet into the gun and spun the cylinder. He pointed the gun in Van Develde's direction and pulled the trigger.

Van Develde described Mahler's behavior as "out of his mind . . . then it turned into out of control." He would be very upset, as he was when he came back in the room, and then he would sort of "chill out," calming down and even joking around. Then, "he'd remember that he was mad again and—and then he'd get all upset again. And I would sort of try to change the vibe and—and then the 13 Xanax kicked in." One moment Mahler was friendly and the next he was screaming "violent, angry jibber jabber." Mahler placed the bullet in the gun during an angry moment, but when he calmed down again, he set the gun down. When Mahler was calm, he would recline on the bed with the gun in his hand. When he was upset he would jump up from the bed.

At one point Van Develde had the gun and was spinning it like he was a cowboy. He was waiting for a moment when Mahler was not looking so that he could throw it off the balcony. Mahler was watching him, so he did not have the chance.

Mahler grabbed the gun from Van Develde and set it down. Mahler then proposed a sexual encounter between himself, Baldwin, and Van Develde. Van Develde concluded from this that Mahler's anger had passed, "everything is cool now and it's lovey-dovey time again and I can leave." As he closed the bedroom door, he heard a gunshot.

Fellow tenant Johann Langlie was home that night drinking alcohol. He heard "[v]ery loud profane screaming" coming from Mahler's bedroom upstairs. Langlie described the screaming as intermittent: a period of derogatory language directed at a woman, then calm, then resumed yelling. These cycles lasted from approximately 2:30 or 3:00 a.m. until 6:15 a.m. At about 6:15 a.m., he heard Mahler screaming at a woman. He said, "I have never ever heard such maniacal screaming in my life." It was threatening and unbelievable. Then he heard "two terrified female screams," and a loud thumping sound that he thought was furniture dropping. Soon after, he heard a dragging sound and another thump.

III. May 27-June 1, 2007

A few minutes after the female screams and thumping noise, Mahler came to Langlie's room and banged loudly on the door. To Langlie, Mahler looked "high on drugs. His pupils were so dilated and he had no skin color and he was completely drained." He was shaking and had a very stiff jaw. Mahler said he had an emergency, and that he needed "`to dispose of a dead body.'" Langlie moved toward Mahler's room and could see into the room. About 15 feet away, he saw "a blonde lady approximately five-three, quite slender, her hair was all dragged up . . . . [¶] I saw a hole in the left cheek with some blood dripping out." It looked like a bullet hole to Langlie. Mahler stated that he shot her on the balcony. Langlie refused to help Mahler, returned to his room, and locked the door.

Van Develde went to his apartment after he left Mahler's room and heard the gunshot. He heard his phone ring, but seeing that the caller was Mahler, he did not answer. Mahler called 10 times. Eventually, Van Develde answered the phone. He asked Mahler where he was and if he, Van Develde, could come back up to get his money. Mahler said he was not at the house, and said rapidly and repeatedly, "`Self-defense, she came at me with a knife.'" Mahler said that he had gone somewhere where he would be protected, and that he had spent $350,000 for protection.

Van Develde did not believe Mahler's statement that he was not home. He went up to ring the gate buzzer to get into Mahler's portion of the house, but no one answered. He looked in the garage window, and one of Mahler's two Jaguars was gone. "[S]omething started to seem a little weird to" Van Develde, and he entered through the garage window and went into the house. Van Develde found that Mahler was not in his room. Van Develde saw fingers sticking out from a bedspread on the floor. Van Develde did not go further into the bedroom, but "hightailed it back" to his apartment.

Once back in his part of the house, Van Develde got Langlie's attention by yelling and throwing rocks at his window. Van Develde and Langlie exchanged information concerning what had transpired. Neither man called the police. A few hours later, Langlie left the house for several days.

Surveillance cameras at the home of the next-door neighbor showed Mahler's blue Jaguar leaving the garage at 6:21 a.m. on May 27, 2007.

Mahler called Charlton Noble early on May 27. They met that morning at a Marriott hotel near Los Angeles International Airport. Mahler checked into the hotel shortly before 7:00 a.m. on May 27 with instructions that he remain anonymous to anyone calling or inquiring whether he was registered at the hotel.

Mahler told Noble that he had wrestled with a woman over a gun and it went off, killing her. He asked Noble to help him dispose of the body but Noble did not believe he was serious. Mahler asked how much it would cost for Noble to get the body, and Noble told him that no amount of money would induce him to do that. Mahler had a prostitute in the hotel room. When she asked for her money, Mahler became angry and jumped off the bed. He may have tripped over a cocktail table; the television was knocked down.

Mahler checked out of the hotel May 28, 2007, just before noon. In the 30-hour period he was in the hotel, Mahler incurred charges of $3,700. Of that amount, more than $400 was due to room service and $2,200 was for damage to the room, including damage to the television set. Surveillance camera footage showed the blue Jaguar backing into the garage at Mahler's home at 12:34 p.m. on May 28, 2007. Later that day the other Jaguar drove out of the garage, turned around, and reversed back into the garage.

A few days before June 1, Mahler went to see Michael Conoscenti. He asked Conoscenti if he knew anyone who would do a "disposal job." Conoscenti found Mahler to be unclear and he seemed to be in a daze.

The blue Jaguar left the garage on May 29 and returned the same day, then left again. It returned on May 30 and was parked head-first in the garage. The blue Jaguar left again that day.

On May 31, at 1:54 a.m., the blue Jaguar pulled into the garage, head-first. Twenty-three minutes later, the other Jaguar exited the garage. That car returned just under five hours later and was parked head-in in the garage.

IV. June 1, 2007

Langlie reported the shooting to police on June 1, 2007. Jeremy Moudy, another tenant at the residence, was awakened in the night by Mahler at his door. Mahler told him the police were there; he wanted to go into Moudy's room to exit the house from a side door with hillside access. Moudy refused to let him through. Moudy let the police enter the house.

Police found wet stains on the carpet that appeared red-tinted; it looked as though someone had tried to clean up blood. There was blood on the stairs—it was on the front portion of each step, consistent with someone having dragged something down the stairs. There was blood in the garage and on a car in the garage. The main bedroom contained bloodstains and cleaning products; there were sponges in the sink with red fibers, suggesting that they may have been used in an attempt to clean up blood. A white bathrobe had a bloodstain on it. No body was recovered. Mahler was found hiding in a closet and was arrested.

Police interviewed Mahler on June 1. Mahler confirmed several details regarding Baldwin, including that they were together on May 27 and what each of them was wearing. Later in the interview he began to attempt to negotiate with the police officers. Desirous of a bail hearing that day, he dangled the possibility that Baldwin was still alive: "Why can't we have a meeting with the judge in chambers before four o'clock? We know what we're doing. Get my bail to the right amount. [¶] And . . . you know, it just seems to me comes Monday which is the next time I can get to court, from what I understand, she won't have a chance." Mahler said, "[T]his is my best bargaining chip because her parents want her alive." He claimed that the last time he saw her, she was not dead, "there was movement and there was the attempt of speech." In a statement he crafted for the District Attorney to demonstrate his cooperativeness, he told the police that Baldwin could be found at the intersection of 15 North above Barstow; that she was not hidden; and that it was "almost like dropping someone off in front of a hospital."

V. Subsequent Events

Baldwin's body was found in a drainage culvert off a highway in San Bernardino County, east of Barstow, on June 16, 2007. Her body was extremely decomposed, almost mummified. Her body was so decomposed that a fingerprint could only be obtained through the use of a special compound pressed onto her fingers. Baldwin was identified by her fingerprint.

The pathologist who performed the autopsy on Baldwin determined that the cause of death was a gunshot wound to the torso. Metal fragments were found in the torso consistent with a bullet localized to an area of her backbone. The pathologist identified other areas of concern—a hole or defect toward the right side of her nose, a larger hole on the back of the neck, and a hole in the right chest; but due to the advanced decomposition of her body, they could not be tracked. It could not be determined whether the facial defect was a bullet hole. There were no holes in Baldwin's cheeks.

Baldwin's body was so decomposed that a DNA sample could not be obtained from it to compare her DNA to the blood stains at Mahler's home. A sample from Baldwin's mother was used instead. The person whose blood was found at Mahler's residence was female, and there was a 99.26 percent probability that Baldwin's mother was the mother of that person.

Mahler was charged with Baldwin's murder (§ 187) and with assault with a firearm against Van Develde (§ 245, subd. (a)(2)).

At trial, Mahler presented the testimony of a psychiatrist appointed by the court to examine Mahler. The psychiatrist concluded that Mahler's presentation was consistent with bipolar disorder and cocaine dependence. Mahler exhibited cognitive defects due to chronic drug use. Psychological testing showed that his ability to think, reason, and plan was impaired. Mahler was easily derailed by impulsiveness and emotion. The difference between his verbal skills and his performance tasks was marked and significant, a difference of a magnitude seen in people with problems in brain functioning.

The psychiatrist testified about bipolar disorder and manic episodes. Individuals experiencing mania may lack the need for sleep, feel that they are on top of the world, or feel that they are better than everyone else. They may think so quickly that they cannot keep up with themselves and are easily distracted. Manic individuals may be unable to keep an idea in their minds long enough to think through any steps.

People in a manic state may produce a "word salad," in which they are unable to finish sentences because they are so distracted. They may produce words that do not form sentences, especially at rapid speed. They may also scream.

Manic episodes are commonly considered the opposite of depression, but often irritation accompanies mania. Mania is a multi-faceted defense to depression, involving a sense that the person is all-powerful and that nothing can hurt that person, and also an irritation and need to attack anything that threatens the senses of omnipotence and invulnerability. That irritation can lead anywhere from touchiness up to "rage attacks." Rages are generally relatively short-lived—a few minutes to a few hours—though irritation may persist for days or weeks. Sometimes, when a rage has passed, a person will recognize what he or she has done. Also, during a rage a person may experience moments of clarity. Frequently after a manic episode a person will go into a severe depression.

Stimulant drugs like cocaine and amphetamines make mania worse and themselves can cause irritability. Alcohol impairs judgment. Bipolar individuals frequently abuse intoxicating substances.

Mahler had been using drugs since the age of 17. He was hospitalized psychiatrically at age 17.

Mahler's description of the night of Baldwin's death was consistent with him experiencing a period of being out of control. That night, someone who wanted money came by, and Mahler felt irritated and threatened; he thought he was being blackmailed. He left to go get money, and when he returned, one of the tenants was in his room with Baldwin, irritating him and causing him to tell the tenant to leave. Mahler and Baldwin argued, and then the argument concluded and Mahler calmed down. He used some cocaine.

Mahler then described calling the tenant, Van Develde, back to find out what he wanted, and he learned that Van Develde wanted drugs. Van Develde liked methamphetamine and Baldwin had methamphetamine, and so Mahler asked her how much methamphetamine she had. He asked her eight or 10 times but she did not respond. Irritated, Mahler snapped. He picked up the gun with the thought that he would scare Baldwin into responding. According to the psychiatrist, Mahler stated that he did not remember what happened next, but the gun went off.

When a person is manic, his or her awareness is diminished and whatever does not fit in the fantasy of omnipotence is eliminated from awareness. When their conduct is pointed out to them during a manic period, what they have said or done "often does not sink in or it sinks in for a moment or two and then there is a flight away from there." Mahler's post-shooting behavior—checking into a hotel after the shooting; engaging the services of a prostitute; drinking alcohol and using more drugs; acting out; and breaking the hotel television set—is a flight from the realization of what happened and is consistent with the continuation of a manic episode.

Mahler also told the psychiatrist that he placed Baldwin's body in the trunk of his car and that he drove until sunlight, and that he pulled over and placed the body somewhere. He said he had no idea what he was doing.

Mahler was convicted of second degree murder, with the jury finding true a firearm enhancement allegation under section 12022.53, subdivision (d); and assault with a firearm. He appeals.

DISCUSSION

I. Erroneous Instructions on Felony Murder

The jury was instructed that "[e]very person who unlawfully kills a human being with malice aforethought or during the commission or attempted commission of Assault with a Firearm in violation of Penal Code section 245[, subdivision] (a)(2)[,] a felony inherently dangerous to human life, is guilty of the crime of murder in violation of Penal Code section 187." The court instructed the jury that, to prove the crime of murder, the prosecution had to establish three elements: (1) that a human being was killed; (2) that the killing was unlawful; and (3) that "[t]he killing was done with malice aforethought or occurred during the commission or attempted commission of an Assault with a Firearm in violation of Penal Code Section 245[, subdivision] (a)(2)[,] a felony inherently dangerous to human life."

The instruction given by the trial court violated People v. Ireland (1969) 70 Cal.2d 522 (Ireland). In Ireland, the California Supreme Court found that assault with a deadly weapon cannot serve as the predicate felony for purposes of the felony-murder rule. (Id. at p. 539.) As the Supreme Court explained, "To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault—a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor law." (Ibid.)

While the Ireland rule has been refined in intervening years, the Supreme Court has continued to hold that assaultive felonies cannot serve as the underlying felonies for purposes of a felony-murder conviction. In People v. Chun (2009) 45 Cal.4th 1172 (Chun), the Supreme Court stated, "When the underlying felony is assaultive in nature, . . . we now conclude that the felony merges with the homicide and cannot be the basis for a felony-murder instruction. An `assaultive' felony is one that involves a threat of immediate violent injury. [Citation.] In determining whether a crime merges, the court looks to its elements and not the facts of the case. Accordingly, if the elements of the crime have an assaultive aspect, the crime merges with the underlying homicide even if the elements also include conduct that is not assaultive." (Id. at p. 1200.)

Pursuant to Ireland and Chun, the court erred in instructing the jury that it could use the assault with a deadly weapon as a basis to find that Mahler had convicted second degree felony murder. The assault with a deadly weapon merged with the underlying homicide and precluded the assault offense from serving as a predicate felony for a felony murder charge. (Ireland, supra, 70 Cal.2d at p. 539; Chun, supra, 45 Cal.4th at p. 1200.) The Attorney General concedes the error but claims it was harmless.

Ireland error is reviewed for harmlessness beyond a reasonable doubt: "Instructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict." (Chun, supra, 45 Cal.4th at p. 1201.) In Chun, the jury was presented with three alternative theories on which it could find the defendant guilty murder: express malice murder, implied malice murder, and felony-murder. As the felony-murder theory in Chun rested on an assaultive crime that could not be the basis for a felony-murder finding, the court observed that the error could only be harmless if the reviewing court concluded, "beyond a reasonable doubt, that the jury based its verdict on a legally valid theory, i.e., either express or conscious disregard for life malice." (Id. at p. 1203.) That conclusion could be supplied in one of two ways, according to the Chun court: either the jury verdict on other points effectively embraced the verdict on the erroneous point, or "`if it is impossible, upon the evidence,'" for the jury to have made the findings it did without finding the disputed point as well. (Id. at p. 1204.) The Chun court summed the test up: "If other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for conscious-disregard-for-life malice, the erroneous felony-murder instruction was harmless." (Id. at p. 1205.)

In Chun, as here, it could not be said that the jury's verdict alone effectively embraced the express or implied malice that was required to ground the jury's murder verdict in a proper theory. In Chun the particulars of the verdict "strongly suggest[ed] the jury based its verdict on a valid theory of malice but, under the circumstances we do not believe that it alone does so beyond a reasonable doubt." (Chun, supra, 45 Cal.4th at p. 1204.) Here, while the evidence would have supported a second-degree murder conviction on an express or implied malice theory (and, although the jury found Mahler not guilty of first degree murder, the evidence would have supported such a verdict as well), the verdict does not indicate that the jury necessarily convicted Mahler on a proper express or implied malice theory rather than for felony murder. The jury's rejection of first degree murder does not include or exclude malice as a theory for second degree murder. The assault with a firearm conviction with respect to Van Develde is unrelated. This leaves only the section 12022.53, subdivision (d) enhancement found true by the jury with respect to the murder, by which the jury found that Mahler personally and intentionally discharged a firearm, proximately causing great bodily injury and death. While the enhancement does contemplate intentional conduct, the intent required to find true that enhancement is the intent to discharge the firearm. The enhancement does not require the intent to kill (express malice), nor does it require the shooter to discharge the weapon with knowledge of the danger to, and with conscious disregard for, human life (implied malice). As none of the elements of the verdict itself require a malice-based theory of murder, the verdict itself does not encompass a proper basis for the murder conviction.

The second possible basis for a harmlessness finding, based on Chun, would be if it were impossible, based on the evidence presented, for the jury to have made the findings it made without also having found that Mahler had express or implied malice. In Chun, the error in presenting a felony-murder theory based on an assaultive crime was harmless for this reason. (Chun, supra, 45 Cal.4th at p. 1205.) There, the underlying felony was shooting at an occupied vehicle; one of the elements of that crime was that the discharge of the firearm had to be willful and malicious. (Ibid.) The court explained, "Thus any juror who relied on the felony-murder rule necessarily found that defendant willfully shot at an occupied vehicle. The undisputed evidence showed that the vehicle shot at was occupied by not one but three persons. The three were hit by multiple gunshots fired at close range from three different firearms. No juror could have found that defendant participated in this shooting, either as a shooter or as an aider and abettor, without also finding that defendant committed an act that is dangerous to life and did so knowing of the danger and with conscious disregard for life—which is a valid theory of malice. In other words, on this evidence, no juror could find felony murder without also finding conscious-regard-for-life malice. The error in instructing the jury on felony murder was, by itself, harmless beyond a reasonable doubt." (Ibid.)

Based on the crimes and the evidence here, we cannot say that the error in instructing on felony murder was harmless beyond a reasonable doubt. Assault with a deadly weapon is a general assault that is committed with a deadly weapon. (CALJIC No. 9.02.) The crime requires that the defendant, who at that time had the ability to apply physical force to another person, "willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on another person," with the awareness of facts that would lead a reasonable person to realize that as a direct, natural, and probable result of this act that physical force would be applied to another person. (CALJIC No. 9.00.) "Willfully," for purpose of an assault, "means that the person committing the act did so intentionally. However, an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person." (CALJIC No. 9.00.)

If the jury did find Mahler guilty of murder based on a felony-murder theory, based on the evidence and verdict in the case, the jury necessarily found that Mahler willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on Baldwin and that he was aware of facts that would lead a reasonable person to realize that as a direct, natural, and probable result of his act that physical force would be applied to Baldwin. (CALJIC No. 9.00.) It also found that he personally and intentionally discharged the firearm.3 (§ 12022.53, subd. (d).)

None of those findings establishes express malice: to have found that Mahler committed felony murder would not demonstrate that he manifested an intention unlawfully to kill Baldwin. (CALJIC No. 8.11.) The findings inherent in a felony-murder-based verdict similarly fail to establish the three elements of implied malice. Certainly the verdict and evidence establish that the killing resulted from an intentional act and that the natural consequences of the act are dangerous to human life. (CALJIC No. 8.11 [first two elements of implied malice].) But the third element is that "[t]he act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." (CALJIC No. 8.11.) Without question the evidence here would support such a conclusion, but we cannot say that the verdict and evidence required it. The jury found that the act was deliberately performed—that Mahler intentionally fired the weapon—and that he did so while aware of facts that would lead a reasonable person to realize that as a direct, natural, and probable result of his act that physical force would be applied to Baldwin. (CALJIC No. 9.00.) However, to have committed the underlying felony, the jury was not required to conclude that Mahler had the intent to cause injury to Baldwin or that he had an actual awareness of the risk that injury might occur to her. (CALJIC No. 9.00.) Moreover, the jury was not properly instructed on the elements of the firearm enhancement under section 12022.53, subdivision (d) but was instructed with the CALJIC instruction applicable to a section 12022.53, subdivision (b) allegation involving "personal use of a firearm." (CALJIC No. 17.19.) The jury, therefore, was directed that if it found beyond a reasonable doubt that Mahler personally used a firearm, meaning that he "intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it," the jury was to return a true finding to the special allegation. If it had been properly instructed, its finding might have shed light on these issues. However, given the instruction, we cannot conclude that the jury's true finding on the section 12022.53, subdivision (d) enhancement means that the jury found beyond a reasonable doubt that Mahler personally and intentionally discharged a firearm within the meaning of that statute.

Ordinarily one would conclude that when a person assaults another with a firearm, the actor is fully aware of the danger to human life posed by that action and that he acts with conscious disregard for life—the final element of implied malice. (See Chun, supra, 45 Cal.4th at p. 1205 [one who participated in shooting at occupants of a vehicle at close range had to know the danger and act with conscious disregard of it]. Had there been no evidence that Mahler was impaired due to drug and alcohol use and/or mental illness, we would have no difficulty concluding, as in Chun, that the commission of the underlying felony under the circumstances of the case also established implied malice, and that therefore the error in instructing on felony murder was harmless beyond a reasonable doubt. But here there was evidence that Mahler was "out of his mind" and "a crazed lunatic."

Mahler, a drug addict, was using cocaine, crystal methamphetamine, Xanax, alcohol, cigarettes, and possibly Vicodin that night. Van Develde described him as "extremely intoxicated or inebriated." Mahler's chronic use of drugs—since the age of 17—had left him with cognitive defects. Mahler's ability to think, reason, and plan was impaired by long-term drug use. Mahler was "easily derailed by impulsiveness and by emotion," and the differential between his performance on verbal tasks (excellent) and on performance tasks (not well) was extreme: "the kind of difference that we see in people who have some sort of difficulty with brain functioning."

Mahler's behavior on the night of Baldwin's death was, moreover, consistent with a manic episode of bipolar disorder. Mahler had been in an altered state leading up to the evening, and when someone came over that evening seeking money from him, he was irritated and threatened. Mahler was walking around speaking gibberish, apparently indifferent to the fact that his bathrobe was open and he was exposing himself. He was very upset and, to the extent that Van Develde could understand him, was claiming to have been "set up" by someone. He was screaming, ranting and yelling, and it was hard to understand what he was saying. He was holding a gun and pointing it "all over the place." Mahler's behavior fluctuated rapidly and dramatically: after being wildly upset, he would calm temporarily, then resume "scream[ing] something, and just—it was a lot of jibber and just jibber, jabber, and then—but it was violent, angry jibber jabber." Even measured against Mahler's usually extreme conduct, this behavior was unprecedented.

A manic phase of bipolar disorder often comes with a sense of irritation and is marked by a lack of need for sleep, a feeling of being on top of the world or better than everyone else. A manic person may speak rapidly or think so fast that he or she cannot keep up with himself or herself, and is easily distracted. In an extreme mania, a person may produce a "word salad"—when someone is unable to finish a sentence because he or she is so distractible. When one is manic, "the problem may be one can't keep an idea in one's head long enough to think through three steps or two steps or even one step." Mania involves a fantasy of being all-powerful and impervious to harm, and anything that threatens that sense of omnipotence can trigger a response varying from irritation to attacks of rage. Screaming, speaking gibberish, and loss of control may accompany a rage. When a rage is over, the person comes back to his or her senses; sometimes even during a rage there may be moments of clarity. Stimulants such as cocaine and methamphetamine exacerbate mania, and alcohol further impairs a manic person's judgment.

Based on this evidence, we cannot say that the jury, if it relied on the felony-murder theory on which it was instructed, nevertheless necessarily found all the elements of an implied malice murder. The jury could have concluded that Mahler intentionally fired the gun but that he was so impaired that he lacked an intent to cause injury or an awareness of the risk that his action posed. If they did so conclude, the jury would have found Mahler guilty of murder based on the felony-murder theory alone, and that felony-murder finding would not of necessity have required the jury to have found that Mahler shot Baldwin with knowledge of the danger to, and with conscious disregard for, human life, as required for implied malice.

The Attorney General argues, however, that "the uncontroverted evidence that appellant intentionally shot the victim in the head at close range supported malice murder," and contends that even a felony-murder verdict would show malice. Langlie did testify that when he looked in Mahler's room and saw Baldwin, there was a hole in her left cheek and she was bleeding. The evidence, however, does not establish conclusively that Baldwin was shot in the head. Baldwin's cause of death was a bullet wound to the torso. Although the advanced state of decomposition of the body made it impossible to track the bullet, metallic fragments near one of her ribs indicated that a bullet struck her bone there and broke up. The pathologist who examined Baldwin's body also noted a hole in the side of her nose; he could not definitively determine whether it was a gunshot wound, but it could have been caused by insects. When Baldwin's body was recovered, there were no holes in the cheekbones or bullet fragments behind the hole in the nose. As the evidence does not definitively establish that Mahler shot Baldwin in the face rather than in the torso, we cannot conclude that the nature of her wound meant that if the jury convicted Mahler on a felony-murder theory, it necessarily found facts sufficient to establish malice.

Therefore, because it was not impossible for the jury to have convicted Mahler of felony murder without finding facts sufficient to demonstrate implied malice murder, and because the verdict does not demonstrate that the jury relied on a legally tenable theory of second degree murder, we cannot say that the error in instructing the jury on felony murder was harmless beyond a reasonable doubt. (Cf. Chun, supra, 45 Cal.4th at p. 1205.)

II. Prosecutorial Misconduct

Mahler contends that the prosecutor committed prejudicial misconduct. The trial court concluded that the prosecutor had committed misconduct, but that the misconduct was not prejudicial. We consider this issue for its impact on Mahler's remaining conviction for assault with a firearm on Van Develde.

During rebuttal closing argument, the prosecutor presented a slide to the jury with the text, "No prior incidents of so-called manic episodes that involved violence[.] [¶] No prior incidents that defendant was cited for drug use or alcohol abuse (out of control)." In the background of the slide, the parties report,4 was shown a police report that reflected Mahler's arrest for domestic violence. The trial characterized the slide as depicting "an arrest report which shouldn't be on the screen and . . . it's very, very light with heavy print over it." The prosecutor did not mention or discuss the arrest report.

Mahler promptly moved for a mistrial. The trial court denied the motion but instructed the prosecutor to remove the slide immediately. The court later, in connection with a motion for new trial, characterized the slide as an "inadvertent mistake by the prosecution" and said that the report in the background was "faint and barely visible." The court, in denying the motion for mistrial, concluded that the display of the arrest report was misconduct, but that it was not prejudicial. The argument the prosecution was making was that Mahler had no history of violent manic episodes or of arrests for drug or alcohol use, and the prosecutor was emphasizing Mahler's lack of a record, not trying to present Mahler's record. The background containing the report was very light, and the court was unsure whether any of the jurors even saw it. On the totality of the circumstances, the court concluded that the slide did not prejudice the jury in any fashion and that it did not deny Mahler a fair trial.

Mahler has not established an abuse of discretion in the refusal to order a new trial. (People v. Ayala (2000) 23 Cal.4th 225, 282.) While the slide should never have been presented to the jury, the arrest report in the background was reported to have been very light, and the slide was displayed only briefly. Mahler does not contest that the text was light and that the slide was not exhibited for long, but he claims that the presentation of his arrest report undermined his diminished actuality defense to the murder charge. None of Mahler's prejudice arguments concern the assault with a deadly weapon on Van Develde, which is the only remaining conviction here; he merely contends that it is highly likely that the jury would have convicted him of involuntary manslaughter were it not for the prosecutorial misconduct. As Mahler has neither contended nor demonstrated that the prosecutor's misconduct tainted the proceedings on the assault with a deadly weapon charge, he has not identified, nor do we, any basis for reversing the conviction for that offense.

III. Issues Addressed to Assist the Court on Retrial

Although our conclusion that the instructional error mandates reversal of the murder conviction makes it unnecessary for us to address a number of Mahler's other contentions, we discuss several in order to assist the trial court if Mahler is retried.

A. Enhancement Allegation Instruction

Mahler contends that the true finding on the enhancement allegation attached to the murder conviction must also be vacated due to instructional error, specifically that the trial court gave instructions for a firearm enhancement under section 12022.53, subdivision (b) rather than those for an enhancement under section 12022.53, subdivision (d). For purposes of retrial, the appropriate instruction for an allegation under section 12022.53, subdivision (d) is CALJIC No. 17.19.5 rather than CALJIC No. 17.19. (See CALJIC No. 17.19.5.)

B. Imposition of Court Construction Penalty on Murder Conviction

The trial court imposed a court construction fee on Mahler in the amount of $5,000 in connection with his second-degree murder conviction. The court stated that it was imposing the fee pursuant to section 1464 and Government Code sections 76000 and 70373, although the court presumably meant section 70372 rather than section 70373 because section 70372 imposes a state court construction penalty tied to other fines and the court made a separate assessment of $30 pursuant to section 70373. Although this penalty is vacated by the reversal of the murder count, should Mahler be convicted on retrial and restitution awarded once more, we refer the court to section 1464, subdivision (a)(3)(A) and Government Code sections 76000, subdivision (a)(3)(A) and 70372, subdivision (a)(3)(A), all of which provide that the penalties may not be assessed on restitution fines.

C. Consistency of Reporting of Mahler's Race

Mahler observes that on the abstract of judgment pertaining to his indeterminate term, his race is listed as "White," but on the abstract of judgment for his determinate term he is listed as "Hispanic." Mahler asserts that the correct term is "White." The Attorney General denies knowledge of Mahler's race and Mahler has not identified evidence in the record establishing which, if any, of the statements of his racial background or national origin is incorrect. As the matter is being remanded to the trial court due to the reversal of the murder conviction, on remand, the trial court should correctly report Mahler's race on all abstracts of judgment.

DISPOSITION

The conviction for second degree murder is reversed and the matter remanded to the trial court. In all other respects, the judgment is affirmed.

PERLUSS, P. J. and JACKSON, J., concurs.

FootNotes


1. Unless otherwise indicated, all further statutory references are to the Penal Code.
2. This was not the first time Van Develde had witnessed unusual behavior from Mahler. Mahler was generally hotheaded. Previously, Mahler had been so distraught over a woman that he was "messed up in the head." Mahler went on "a big bender" and was hearing voices; Van Develde had ended up "baby-sitting" him. Mahler's behavior this night, however, was more extreme—he had never seen that kind of "total behavior" before.
3. The jury was improperly instructed on the section 12022.53, subdivision (d) enhancement because the trial court gave CALJIC No. 17.19 rather than CALJIC No. 17.19.5.
4. No background images are visible on the copy of the slide provided to this court on appeal.

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