CERTIFIED FOR PARTIAL PUBLICATION
Eric Russell Andreasen appeals from a judgment convicting him of first degree murder, with a special circumstance finding of murder during the commission of attempted robbery. At trial, defendant disputed that he was engaged in a robbery at the time of the killing, and also raised a plea of not guilty by reason of insanity.
On appeal, defendant argues the guilt phase judgment must be reversed because (1) the trial court abused its discretion in admitting prior misconduct
In the published portion of this opinion, we reject defendant's vagueness challenge to the felony-murder special-circumstance enhancement, and his claim of a Miranda violation. In the unpublished portion of this opinion, we find no error concerning the admission of the prior misconduct evidence, the sufficiency of the evidence of attempted robbery, and the instruction concerning refusal to submit to an examination. We agree the parole revocation restitution fine must be stricken, and modify the judgment accordingly. As so modified, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 3, 2009, defendant approached victim Katherine Parker in a shopping center parking lot, engaged in an altercation with her, and fatally stabbed her. Several witnesses testified at trial about their observations.
Christine Moring testified that about 4:00 p.m. on April 3, 2009, she saw defendant in the parking lot approaching a man and talking to him. She had an uncomfortable feeling about the defendant's interaction with the man. While she was putting her shopping cart in the cart rack, Moring saw defendant pacing near her car and look inside her car. Moring had left her purse inside her car and the driver's door open, so she ran to her car and slammed the door shut. Defendant looked at her and said in an angry voice, "`All I wanted was some change,'" and he then "stormed off."
After leaving Moring, defendant assaulted victim Parker in a nearby area of the parking lot. Moring, who observed the incident, testified that as she was preparing to drive out of her parking space, she saw defendant "jump" onto Parker and his hand "going up and down ...." As she drove closer, she saw defendant wrestling with Parker, "moving her around a little bit." She then saw him holding her up from around her waist with one of his hands, and she saw his other hand moving repeatedly in an up-and-down motion.
Mrs. Kusiak testified she first heard "[l]oud, out of control, scared, female" screaming. When they drove closer, she saw Parker slightly bent over, struggling with defendant, and clutching her purse in front of her. Defendant's arms were around Parker; he appeared to be punching her and making reaching motions towards where she was holding her purse.
As the attack was occurring, Moring and Mr. Kusiak started honking their horns, and people began coming out of the stores. Witnesses saw Parker slump over and drop to the ground. Defendant then stepped back, threw the knife across the parking lot, dropped to the ground, and stayed there until the police came and arrested him.
Other witnesses arrived at the scene after Parker was lying on the ground. Parker was in extreme pain, but was initially conscious. Marisa Diaz-Waian sat down next to Parker and put Parker's head in Diaz-Waian's lap. Parker was clutching her purse with one of her hands, and Diaz-Waian had to take Parker's hand off of the purse to try to hold her hand. Brenda Moser (a nurse) testified that Parker was tightly clutching her purse; Parker would not let go of it when Moser tried to take it from her; and Moser had to ask Parker a couple of times if she would release the purse so Moser could get her identification. In addition to seeing severe wounds on her face and abdomen, Moser noticed that Parker had several slash wounds to her hands.
When the paramedics arrived, Parker was in critical condition and bleeding heavily. She lost consciousness and died before she could be transported to the hospital. She suffered cuts on her face, neck, chest, abdomen, and hands, and as a result of her wounds bled to death. Her injuries included a deep cut from her mouth to her cheek area; a deep cut across her neck that severed her
Uncharged Misconduct Evidence
To support that defendant killed Parker while he was attempting to commit a robbery, the prosecution presented evidence of an offense he committed in 2004 which involved panhandling and assault, and several incidents when he engaged in aggressive panhandling shortly before the April 2009 stabbing.
Ricardo Hernandez described the 2004 offense when defendant and another man demanded money from him and then assaulted him. Hernandez testified defendant "asked for some change." When Hernandez said he did not have any, defendant argued with him in an angry, loud voice, saying that Hernandez was lying and he did have money. As Hernandez started walking away, defendant kept arguing with him. Defendant's companion then ran up and "took a swing" at Hernandez. Hernandez and the companion fell to the ground, and defendant jumped on top of Hernandez and started hitting him. Hernandez was trying to "duck and cover" himself as the men were hitting him. The men eventually stopped and left Hernandez on the ground without taking any property from him.
The aggressive panhandling incidents included an altercation about nine days before the stabbing near defendant's home; two altercations at the same shopping center as the stabbing (the first incident occurring four days before the stabbing, and the second one occurring the day before the stabbing); and an altercation on the morning of the stabbing at a shop across the street from the shopping center.
Christine Carlino, who lived next door to defendant, testified that in January 2009 she and her husband encountered defendant at around 9:00 p.m. while they were walking their dog. Defendant was rambling "on and on" about how he needed money, and Carlino's husband told defendant he should go home. A few months later, on about March 24 or 25, defendant came up to Carlino about 6:00 a.m. when she was getting her newspaper from the driveway. Defendant demanded money from her in an aggressive, "scary" manner, saying "`I need some money, you have to give me some money.'" Carlino felt frightened, explaining that defendant "appeared out of nowhere"; he was "towering over" her; and he was using a "very deep," "booming" voice. Carlino's dog had run out of the house and was barking and circling around defendant's feet. While defendant was still talking, Carlino grabbed her dog and ran back into her house.
Marilyn Finley testified that on about March 30, 2009, defendant approached her while she was in her car in the shopping center's parking lot.
Natalie Brown testified that on April 2, 2009, while she was outside smoking during a break from her job at the shopping center, defendant approached her and asked if she had any change. After Brown looked in her wallet and said she did not have any, defendant asked for a cigarette. Brown gave him one, but defendant became agitated and angrily yelled at her: "`No .... I want more.... [¶] ... [¶] Give me some damn money.'" Brown was shocked and startled and thought he was being rude, so she yelled back at him: "`Get away from me, I'm not giving you anything else.'" One of Brown's coworkers then walked over, and defendant left.
About 8:00 a.m. on April 3, 2009, Frances Lotito was at a bagel shop across the street from the shopping center where the stabbing occurred. Defendant approached her as she was getting out of her car and asked for money. When she told him she did not have any, he became very agitated and said, "`You're lying. You're lying. Give me some money.'" She told him she would if she had some, but she did not have any. She walked around her car and grabbed her purse from the passenger's side of the car. Defendant cornered her next to her car and said, "`You're lying to me. You look like a rich woman. Give me some money.'" She told him she was sorry but she did not have any money, and quickly went into the bagel shop. He followed her into the shop, leaned up against the counter with his arms crossed, and glared at her. She asked the bagel shop employee to call the police, but the employee did not do so. Lotito then saw defendant talking to some other people, who handed him something, and he then left. Lotito testified she felt very frightened during the incident.
Guilt Phase Verdict
Defendant was tried for first degree murder on a premeditated murder theory and/or felony-murder theory (based on attempted robbery). The jury convicted him of first degree murder, found that he personally used a deadly or dangerous weapon (a knife) during the murder, and found true the special circumstance that he committed the murder during an attempted robbery. After the jury's verdict, defendant admitted that he had incurred a strike prior conviction, prior serious felony conviction, and prior prison term.
To assist with the determination of the sanity issue, defendant's mental state was evaluated by two court-appointed experts (Drs. David Naimark and Glenn Lipson) and by an expert retained by the prosecution (Dr. Park Dietz). Defendant was personally interviewed by the two court-appointed experts; however, he refused to be interviewed by the prosecutor's retained expert, Dr. Dietz. The experts reviewed numerous materials relevant to the sanity issue, including police and medical reports related to the offense; videotapes of defendant at the police station after the offense; statements defendant made to his mother and Dr. Naimark concerning the offense; and defendant's criminal and mental health history.
Drs. Dietz and Naimark testified for the prosecution and Dr. Lipson testified for the defense. The experts agreed that defendant suffered from schizophrenia and had a history of delusional behavior, including being naked in public and claiming to be Jesus. Drs. Dietz and Naimark opined that notwithstanding his mental illness, defendant understood the nature and quality of his act and the difference between right and wrong at the time of the offense. In support, the prosecution's experts cited such factors as defendant's carrying of a concealed fixed-blade knife; his goal-directed panhandling before the offense; his conduct reflecting he was motivated by anger and a desire for money; his postoffense conduct suggesting he knew he would be arrested; his statements to the police during a videotaped interview giving examples of matters he perceived as wrongful and reflecting that he was not "grossly psychotic"; and his statements to his mother and Dr. Naimark referring to the victim as an "unlucky" person and indicating he committed the offense to get attention from people he perceived as having wronged him.
Testifying on behalf of the defense, Dr. Lipson explained that in his written report he had concluded defendant did not fully appreciate the nature and quality of his actions and did not have the ability to tell right from wrong. Dr. Lipson opined that defendant made statements and exhibited conduct indicating he experienced delusions; a video of defendant in a holding cell after his arrest (before he was interviewed by the police) showed he was suffering from psychosis; and defendant would not have reacted as violently as he had if not for his delusions. However, Dr. Lipson testified that ultimately he rendered a "soft opinion" on the sanity issue because there were factors that could support both sanity and insanity and he was not able to conclude "100 percent" that defendant was insane.
Sanity Phase Verdict and Sentence
At the conclusion of the sanity phase of the trial, the jury found defendant was sane at the time he committed the offense.
Based on the special circumstance finding of murder during an attempted robbery, defendant was sentenced to life without the possibility of parole. He also received a seven-year determinate sentence based on the enhancements for personal use of a deadly weapon, the serious felony prior, and the prior prison term.
I. Guilt Phase Arguments
C. Vagueness Challenge to Special Circumstance Enhancement for Murder During Attempted Robbery
Defendant argues the special circumstance enhancement, which imposes a sentence of death or of life without the possibility of parole for a murder committed during a felony, is unconstitutionally vague. He contends that as applied to the actual perpetrator of the killing (who need not have the intent to kill), the special circumstance is indistinguishable from the felony-murder offense, which imposes a life sentence with the possibility of parole when there is no special circumstance finding. Defendant posits this creates a constitutional infirmity because the prosecutor had "unfettered discretion" to select the charge, and defendant had no way of anticipating whether he would be subjected to the possibility of death or life in prison without the possibility of parole, rather than life with the possibility of parole.
These statutes provided defendant with notice that if he commits a statutorily specified felony and kills someone during that felony, he could be subjected to a sentence of 25 years to life with the possibility of parole, life without parole, or death. Defendant had notice as to the proscribed conduct and potential punishment. The mere fact that the prosecution has discretion to select which punishment it will seek does not render a statute unconstitutionally vague or create an improper risk of arbitrary enforcement of a criminal statute. (See People v. Earp (1999) 20 Cal.4th 826, 905 [85 Cal.Rptr.2d 857, 978 P.2d 15]; Bradway, supra, 105 Cal.App.4th at pp. 310-311; People v. Keenan (1988) 46 Cal.3d 478, 506 [250 Cal.Rptr. 550, 758 P.2d 1081] ["By acceptably narrowing the circumstances under which capital punishment may be sought and imposed, such a law satisfies the constitutional prohibition against arbitrary and capricious exaction of the death penalty."].)
Moreover, even assuming arguendo that constitutional due process requires a distinction between the felony-murder offense and the felony-murder special circumstance (see People v. Gutierrez, supra, 28 Cal.4th at pp. 1148-1149; Bradway, supra, 105 Cal.App.4th at pp. 309-310; Houston v. Roe, supra, 177 F.3d at p. 907), there is such a distinction. As we shall explain, the felony-murder offense is established merely upon a showing that the defendant killed during the commission or attempted commission of the felony, whereas the felony-murder special circumstance requires an additional showing that the intent to commit the felony was independent of the killing.
The purpose of the felony-murder rule "is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any
There is no requirement of intent to kill for either the felony-murder offense or the robbery-felony-murder special circumstance (unless the special circumstance is applied to an aider and abettor). (§ 190.2, subds. (b), (c); People v. Gutierrez, supra, 28 Cal.4th at pp. 1140-1141; People v. Earp, supra, 20 Cal.4th at p. 905; People v. Anderson (1987) 43 Cal.3d 1104, 1138-1139, 1142, 1147 [240 Cal.Rptr. 585, 742 P.2d 1306].) The courts have repeatedly rejected constitutional challenges to the imposition of the special circumstance punishment on the direct killer, even though the statute can operate to punish a felony murderer who kills unintentionally more harshly than a simple murderer who kills intentionally. (See People v. Anderson, supra, at pp. 1146-1147; People v. Earp, supra, at p. 905 ["`the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state ...'"]; People v. Taylor (2010) 48 Cal.4th 574, 661 [108 Cal.Rptr.3d 87, 229 P.3d 12].)
Assuming due process requires a distinction between the felony-murder offense and special circumstance, the independent-felonious-purpose requirement applied to the special circumstance provides this differentiation.
Defendant's constitutional vagueness challenge is unavailing.
II. Sanity Phase Arguments
A. Instruction that Defendant Refused Examination by Prosecution's Retained Expert
B. Admission of Defendant's Statements to Police
Defendant argues the trial court erred by allowing the prosecution to rebut his insanity defense with evidence based on his videotaped statements to the police after he invoked his Miranda rights.
As we shall delineate below, a video of defendant in a holding cell shortly after his arrest shows that he was acting in a highly agitated, angry,
On appeal, defendant raises a Miranda challenge to the admissibility of the videotaped conversation between him and the guarding officers while awaiting the forensic personnel.
During pretrial motions, the prosecutor moved to admit, in the sanity phase of the trial, defendant's videotaped statements to the police while he was being guarded in a room at the police station about three hours after his arrest. Defendant was in the room for about one and one-half hours while awaiting the arrival of an evidence technician and a phlebotomist prior to transport to the jail. Defense counsel objected to the evidence on the grounds that defendant had invoked his Miranda rights and all police questioning should have ceased.
The Videotaped Statements
To assist in the determination of the Miranda issue, the trial court reviewed the videotape and a transcript of the conversations between defendant and the guarding officers. We have also reviewed these materials on appeal.
While the detective was gone, defendant remained seated in the room, restrained with wrist and waist chains, and watched by a security officer and a police officer who were seated several feet from defendant. In soft, conversational tones, the two officers asked questions and talked with defendant about such matters as his tattoos, sports, his talent as a musician and music he liked, his inability to sleep, his gambling and betting activity, where he grew up, activities in Las Vegas, car racing, record stores in the area, and his pets.
The detective intermittently returned to the room, during which time he discussed defendant's request for medication; explained to defendant that they needed to change his clothes and draw his blood before they could transport him; asked if defendant would cooperate when they removed his restraints to change his clothes; and (in response to defendant's expressed concern about needles) promised to stand next to defendant during the blood draw. When the evidence technician arrived at the room, the technician photographed defendant and took his clothes as evidence. When the phlebotomist arrived, the detective again returned to the room and, as promised, stood near defendant during the blood draw procedure.
In the early stages of the waiting period in the room, the conversations between defendant and the two officers guarding him were interspersed with short periods of silence where no conversation occurred. As the waiting time continued, there were extended periods of silence during which no one was talking to defendant. During the course of the time in the room, the officers repeatedly thanked defendant for his cooperation, particularly when they removed his restraints to change his clothes. They also gave him water and offered to get him a candy bar. After his clothes were changed, defendant continued to sit in the room with the security officer with no restraints. There was little conversation during the remaining time in the room, except for brief responses to defendant's questions or comments about how long he had to wait, his request for shoes, medication and food, and his feeling cold.
Trial Court's Ruling and Admission of Evidence at Trial
The prosecutor argued the videotaped statements were admissible to show defendant's sanity because they were not the product of an interrogation but
The trial court ruled that, except for the portion of the videotape where defendant invoked his Miranda rights, the videotaped statements were admissible. The court evaluated whether the police had formulated "a plan ... to entice [defendant] to demonstrate that he was sane," and concluded this did not occur. Instead, the court found defendant's statements were made during casual, innocuous discussions designed to keep defendant calm while waiting for the technician and the phlebotomist. Accordingly, the court ruled the prosecution's experts could properly refer to the videotaped conversations when opining on defendant's sanity at the time of the crime.
Based on the court's ruling, the redacted videotaped conversation with the police was played for the jury, and the expert witnesses referred to the videotape when opining on defendant's sanity. Dr. Dietz testified that defendant's ability to identify to the police things that he perceived as wrong (i.e., torture, etc.) showed he was capable "of that level of abstract thought that allows him to say some things are wrong." Dr. Naimark testified the videotape showed defendant was not "grossly psychotic" but rather was "sitting calmly, answering appropriately, and basically had a mostly normal mental state," and the videotape (along with some other materials) caused him to change his original opinion that defendant could not distinguish right from wrong due to his psychosis. The defense expert witness (Dr. Lipson) testified the videotape "softened" his opinion on the sanity issue because he saw signs during the interview that defendant had a "greater appreciation of right and wrong" than was reflected in other materials.
To rebut the prosecution's use of the videotaped conversation to support defendant's rationality, the defense showed the jury the video of defendant in the holding cell at the police station shortly after his arrest and prior to being interviewed by the police. This video depicts defendant pacing and cursing and speaking angrily to himself in an agitated and delusional manner. He eventually calmed down, and was thereafter interviewed by the police.
Generally, statements elicited in violation of these Miranda principles may not be used against the defendant at trial (People v. Gomez, supra, 192 Cal.App.4th at p. 627), including to rebut a sanity defense (People v. Weaver (2001) 26 Cal.4th 876, 960-961 [111 Cal.Rptr.2d 2, 29 P.3d 103] [expert opinion testimony derived from competency examination that is not afforded Miranda protection is inadmissible at sanity phase]; People v. Ricco (Ct.App. 1982) 56 N.Y.2d 320 [452 N.Y.S.2d 340, 437 N.E.2d 1097, 1101] [expert's opinion testimony about defendant's sanity derived from defendant's statements to detective inadmissible due to Miranda violation]). This exclusionary rule is applied in prophylactic fashion to deter coercive investigative questioning and advance the trustworthiness of trial evidence, even if the defendant's statements were voluntary apart from the Miranda violation. (See Smith v. Illinois (1984) 469 U.S. 91, 95, fn. 2, 99, fn. 8 [83 L.Ed.2d 488, 105 S.Ct. 490]; People v. Bradford (1997) 14 Cal.4th 1005, 1033 [60 Cal.Rptr.2d 225, 929 P.2d 544].)
For example, under the "`routine booking question' exception" to the Miranda rule, the police need not provide Miranda warnings prior to asking routine booking questions to secure biographical information. (Muniz, supra, 496 U.S. at pp. 601-602; see People v. Quiroga (1993) 16 Cal.App.4th 961, 967 [20 Cal.Rptr.2d 446]; People v. Hall, supra, 199 Cal.App.3d at p. 921.) Also, the Miranda requirements are generally not implicated when the police ask questions related to safety concerns that arise during the arrest or booking process. (People v. Gomez, supra, 192 Cal.App.4th at pp. 634-635 [Miranda not triggered during routine booking question about gang affiliation designed to ensure safety of jail placement]; People v. Jones (1979) 96 Cal.App.3d 820, 827-828 [158 Cal.Rptr. 415] [Miranda not triggered by arrest question related to defendant's medical condition].) Similarly, casual conversations or "smalltalk" unrelated to the offense do not typically constitute a Miranda interrogation. (People v. Gamache (2010) 48 Cal.4th 347, 388 [106 Cal.Rptr.3d 771, 227 P.3d 342]; see People v. Lewis (1990) 50 Cal.3d 262, 274-275 [266 Cal.Rptr. 834, 786 P.2d 892]; People v. Franzen, supra, 210 Cal.App.4th at pp. 1201-1203; U.S. v. Foster (9th Cir. 2000) 227 F.3d 1096, 1102, 1104; Commonwealth of Pennsylvania v. Abdul-Salaam (1996) 544 Pa. 514 [678 A.2d 342, 351] ["small talk concerning Appellant's family and injury was merely general conversation, which is routinely attendant with a custodial relationship" and "did not rise to the level of an interrogation"].)
The fact that information gathered from these routine questions or casual conversations turns out to be incriminating does not alone render the statements inadmissible. (See People v. Gomez, supra, 192 Cal.App.4th at p. 629.) This principle excluding routine or casual communications from Miranda's coverage can apply even when a defendant has already received Miranda warnings and invoked his or her rights. (U.S. v. Foster, supra, 227 F.3d at pp. 1103-1104; Commonwealth of Pennsylvania v. Abdul-Salaam, supra, 678 A.2d at pp. 350-351.)
However, a Miranda interrogation may emerge during routine or casual exchanges if the police ask questions "`that are designed to elicit incriminatory admissions.'" (Muniz, supra, 496 U.S. at p. 602, fn. 14; see People v. Gomez, supra, 192 Cal.App.4th at p. 627.) For example, the Muniz court held that although a defendant's confused manner of answering routine biographical questions was admissible to prove his intoxication at the time of
On appeal from the denial of a Miranda exclusionary motion, we defer to the trial court's factual and credibility findings if supported by substantial evidence, and independently determine whether the challenged statements were illegally obtained. (People v. Ochoa, supra, 19 Cal.4th at pp. 401-402; People v. Gomez, supra, 192 Cal.App.4th at p. 627.)
The record shows that the police had in their custody a defendant who had viciously stabbed a woman in a parking lot during an apparent panhandling incident, and who had been extremely agitated and exhibited signs of mental illness when he was first placed in a holding cell. After defendant calmed down, a detective read defendant the Miranda warnings, defendant agreed to speak, and the detective questioned him about right and wrong. The detective
Thereafter, defendant remained in the room at the police station while awaiting routine processing prior to the transport to the jail. During this waiting period, defendant was placed in the care of a security officer and a police officer. Defendant was restrained at his wrists and waist, but these restraints needed to be removed to accomplish the evidence-gathering process. Given the nature of the crime and defendant's angry, delusional demeanor when he was first placed in a holding cell, the officers would naturally be concerned that he could erupt at any moment in an aggressive fashion, and it is apparent they were taking measures to try to prevent this. This is shown by the detective's request that defendant cooperate with his partner when he left the room; the officers' repeated communications to defendant thanking him for his cooperation with the necessary booking procedures; and their soft-spoken, solicitous attitude towards him during all their interactions. Consistent with this approach, the officers attempted to engage defendant in conversation during the early stages of the waiting period prior to the arrival of the evidence technician and phlebotomist. The conversations elicited by the guarding officers never mentioned the offense or distinctions between right and wrong, but concerned neutral topics about defendant's interests and life.
III. Parole Revocation Restitution Fine
The $10,000 parole revocation restitution fine under section 1202.45 is stricken from the judgment. As so modified, the judgment is affirmed. The superior court shall prepare an amended abstract of judgment removing the $10,000 section 1202.45 parole revocation restitution fine, and forward the amended abstract to the Department of Corrections and Rehabilitation.
Huffman, Acting P. J., and Nares, J., concurred.