Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super.Ct.No. F13772
Duffy, J.
A jury convicted Anthony Lewis DeWolf, the defendant herein, of first degree murder (Pen. Code, §§ 187, 189). The jury found true four prior strike allegations under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, 1192.7, subd. (c)) and three prior prison allegations (§ 667.5, subd. (b)). The trial court sentenced defendant to 75 years to life in state prison.
Following our standard practice, we caption and state defendant’s name as it appears on the cover of the first volume of the clerk’s transcript. In the record, however, defendant states that his last name is spelled De Wolfe. The record contains numerous instances of both spellings.
Further statutory references are to the Penal Code unless otherwise indicated.
No reversible error or constitutional violation occurred, and we will affirm the judgment.
FACTS
I. Prosecution Case
A. Defendant’s Murder of Michael Wheeler
Defendant beat a fellow street person, Michael “Stash” Wheeler, to death on the evening of August 3, 2006. Two witnesses saw the attack and testified about it at trial.
Jeffrey Allen Metro, who lived in a van, testified that he had been clean and sober for five years, but that he used to drink with Wheeler before going on the wagon, and even after he became sober, he would see Wheeler daily. Metro also knew defendant. He was riding his bicycle and saw defendant hitting Wheeler with a stout stick and kicking him. Wheeler was lying on the ground. The stick was about 3.5 feet long, about 1 to 1.25 inches thick, and was split at one end. Defendant, brandishing the stick, turned toward Metro with a wild stare and gritted teeth and threatened Metro that he was next in line to be attacked. Metro fled on his bicycle.
David Schneider saw defendant repeatedly punch Wheeler as he lay on the ground. Wheeler was in a pool of blood and was bleeding from his head, and there was blood on defendant. Schneider noticed that Wheeler was alive at that point; he could see Wheeler’s chest rising and falling, and blood was pumping out of him. Defendant, who was agitated and angry, finally began to walk away.
Rannvi Ekdahl, the bartender at the nearby Watering Hole bar in Santa Cruz, saw defendant at the rear of the establishment, circling on a bicycle motocross (BMX) bicycle. She saw dark red flecks on his face, and though defendant was riding the BMX bicycle, he was managing to hold a short and stout stick in one hand.
B. Defendant’s Behavior Before the Murder
The prosecution, which was seeking to convict defendant of first degree murder, introduced evidence of defendant’s menacing behavior and relative lack of alcohol consumption in the Watering Hole bar and elsewhere in the hours before the murder to advance its theory that the murder was premeditated, deliberated, and not made less culpable by any voluntary intoxication on defendant’s part.
A number of witnesses testified that defendant was dangerously agitated and was threatening people with bodily harm or death at the Watering Hole bar and in other locations before the murder.
Defendant arrived at the Watering Hole bar about 6:00 that evening. He brought with him the metal blade portion of a shovel and left it outside. He approached the bartender, Ekdahl, and told her he would take care of anyone who bothered her. Ekdahl took note of the aggressiveness of defendant’s statement and of his intense manner. Defendant was not drinking much, but he became more agitated in the next couple of hours. He began to announce, loudly, repeatedly, and in obscenity-laced language, that he would “ ‘kill’ ” anyone who bothered Ekdahl. At times defendant, a large man, would invade other patrons’ personal space and utter this threat in their faces. Eventually, as defendant was on the verge of leaving the bar, he grabbed a billiard ball, “something that people will often use as like a weapon in a fight,” Ekdahl told the jury. At that point, a thoroughly alarmed Ekdahl ordered him to leave the ball in place and to exit the bar. He departed and Ekdahl, in an unprecedented action, locked the doors so he could not return. She did not see him again until after the murder, when, as described, she saw him circling in the parking lot with blood on his face.
Shortly after leaving the Watering Hole bar, defendant encountered Linda Nelson and, as it happened, Wheeler, the eventual murder victim. Defendant was holding the shovel blade and used it to slap away a cigarette that another person was offering to Nelson. He told Nelson in obscenity-laced language that he did not want her to have a cigarette and threatened to kill her.
Nelson quickly left after defendant threatened her, and defendant soon confronted a man named Ronnie. In an angry but wordless state, defendant slammed the metal shovel blade against a tree in the manner of William Tell, i.e., about three inches above Ronnie’s head. In swinging the blade at Ronnie, defendant stumbled, fell, and struggled to get up. Wheeler, who would soon be murdered by defendant, laughed at defendant’s predicament. Like Nelson, Ronnie left the scene of danger quickly.
About this time defendant also encountered Stanley Richard Arney. Defendant, who had a “cold, cruel look in his eye,” loudly announced to Arney that he might attack him with the shovel blade. Arney moved away and avoided being attacked.
Aside from the victim’s laughing at defendant following his stumble, in no instance did anyone do anything to provoke defendant.
C. Other Prosecution Evidence
Santa Cruz police arrested defendant about two hours after the murder. He smelled moderately of alcohol and his words were slightly slurred. Deoxyribonucleic acid (DNA) analysis showed that blood found on defendant’s T-shirt and his face came from the victim.
II. Defense Case
The defense theory was that one or both of the Syvertsen half-brothers or step-brothers killed Wheeler, perhaps out of animus or perhaps because Wheeler had witnessed the Syvertsens’ prior violent conduct.
On June 29, 2008, about a month before the murder of Wheeler, Wheeler and Paul Haggblom reported to the police that they had been beaten, and Haggblom robbed, by William Syvertsen and Anthony Syvertsen, which latter individual was also known by the last name of Frontzak or Frontzak-Syvertsen. The Syvertsens told Wheeler and Haggblom to stay out of the part of Santa Cruz that the victims habituated or they would kill them. On July 1, 2008, Anthony Syvertsen attacked Haggblom from behind with a metal bar. The attack caused considerable bleeding. As a result of the June 29 attack, Anthony Syvertsen was jailed on July 1 on charges of assault with a deadly weapon.
At closing argument, the defense conceded that defendant was exposed to Wheeler’s blood but argued that he might have been present at the murder scene, in an intoxicated and possibly unconscious state, without committing any violent acts.
II. Prosecution’s Rebuttal Case
A Santa Cruz jailer testified that on August 3, 2006, the day of Wheeler’s murder, Anthony Syvertsen remained in custody. The jailer had no information about William Syvertsen. In rebuttal closing argument, the prosecutor asserted that there was “no evidence” to provide an innocent explanation for the blood found on defendant and his clothing.
DISCUSSION
I. Evidentiary Claims
A. Sufficiency of the Evidence That the Murder was of the First Degree
Defendant claims that there was constitutionally insufficient evidence that his murder of Wheeler was of the first degree. He argues that the evidence shows only that if he killed Wheeler, he did so heedlessly and in a drunken stupor and lacked the premeditation and deliberation required for first degree murder.
The jury found that the murder was in the first degree. In order to do so, under the facts of this case, it had to find that defendant premeditated and deliberated the killing. (§ 189.)
Under the federal Constitution’s due process clause, there is sufficient evidence to support defendant’s conviction if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) The same standard applies under article I, section 15, of the California Constitution. (People v. Berryman (1993) 6 Cal.4th 1048, 1083, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) This test “does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S. at pp. 318-319.) “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “The court does not, however, limit its review to the evidence favorable to the respondent. . . . ‘[O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial; it is not enough for the respondent simply to point to “some” evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.” ’ ” (Id. at p. 577.)
In turn, substantial evidence is defined as evidence that is “reasonable, credible and of solid value.” (People v. Dunkle (2005) 36 Cal.4th 861, 885.)
People v. Perez (1992) 2 Cal.4th 1117, reiterated the test for sufficiency of the evidence of premeditation and deliberation set forth in People v. Anderson (1968) 70 Cal.2d 15. Three main kinds of circumstances give evidentiary support to a murder conviction based on premeditation and deliberation, namely planning activity, motive, and manner of killing. (Perez, at p. 1125.) Perez cautioned, however, that “[t]he Anderson guidelines are descriptive, not normative” (ibid.); they are not “exhaustive.” (Ibid.)
People v. Morris (1988) 46 Cal.3d 1, noted that evidence of planning is “the most important prong of the Anderson test.” (Id. at p. 23.)
Morris was disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543-544, footnote 5.
Contrary to defendant’s view, there was evidence, notably evidence of planning, before the jury to sustain its verdict. As noted, defendant had spent a number of hours before the killing announcing that he was going to kill anyone who acted in a manner he disapproved of. The recipients of defendant’s explicit threats included bar patrons and Linda Nelson. Moreover, regarding motive, defendant acted in a manner that showed a volition to cause great bodily injury or death as he wielded his shovel blade in a number of terrorizing acts away from the bar before he killed Wheeler. A rational trier of fact could conclude that defendant was planning to kill at the slightest provocation that evening and that Wheeler, by laughing at defendant when he stumbled and fell following his attack on Ronnie with the shovel blade, sufficiently motivated defendant to carry out his plan. Defendant’s claim is without merit.
B. Denying Motion to Suppress Evidence
Defendant next argues that the trial court erroneously denied his pretrial motion to suppress evidence, notably the inculpatory evidence of blood that was used to identify him as the killer through DNA testing that was seized without a warrant from his tent after his arrest. Defendant argues that the police needed a warrant to remove the evidence from a tent from which the police extracted defendant and the evidence.
Because defendant had pitched his tent on private property without the owner’s consent and in violation of a municipal ordinance prohibiting camping, he had no Fourth Amendment–protected interest against the action of the police. Therefore the trial court’s ruling was correct.
In an in limine hearing, the trial court heard testimony that following defendant’s murder of Wheeler Santa Cruz police officers, backed up by rangers from the California Department of Parks and Recreation, approached defendant as he lay in his tent, which was pitched on private property within the city of Santa Cruz in violation of the city’s no-camping ordinance. An executive with the company that owned the land testified that the landowner does not allow camping on its property, never gave defendant permission to camp on it, and maintained two no-trespassing signs on it.
The trial court took judicial notice of a Santa Cruz municipal ordinance that prohibits camping within city limits.
Defendant testified that he had permission from someone who worked at an adjacent lot to camp on the property, and he stated that county workers or a neighboring business owner had given him a tent so that he could serve as an informal night watchman for the area. Defendant had lived on the property for about five years.
The trial court concluded that defendant may have had a subjective expectation of privacy because the landowner and the police had tolerated his presence there, but that there was no objective expectation of privacy. It concluded that no objective expectation of privacy could exist, first, because defendant was a trespasser, and second, because of the municipal ordinance forbidding camping. The court ruled that “it is not objectively reasonable. It’s illegal. There is no permission. It’s trespassing. It’s on private property and so I don’t think the objective standard can be established in this case. You have a trespass. It’s a common law trespass. And, secondly, you have the Santa Cruz city camping ordinance. It’s Municipal Ordinance 6.36.010, et seq. Clearly, this would come within the ambit of that statute.”
“In ruling on a motion to suppress [§ 1538.5], the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]” (People v. Hoyos (2007) 41 Cal.4th 872, 891.) On independent review of the ultimate question—the validity of the state’s action under the Fourth Amendment to the United States Constitution—we conclude that the trial court correctly denied defendant’s motion to suppress.
Defendant argues on appeal that “the true property status of the location was nothing short of ambiguous and arcane” and that he committed only “the most marginal, technical, ambiguous, and tolerated trespass on private property, and violation of a camping ordinance, imaginable.” He points to evidence in the record that the police and private landowners turned a blind eye to camping that regularly occurred at the site.
Although it is true that tents legally pitched in public campgrounds have been given Fourth Amendment protection (U.S. v. Gooch (9th Cir. 1993) 6 F.3d 673, 677-679; see People v. Thomas (1995) 38 Cal.App.4th 1331, 1334), and that under specified circumstances “ ‘a person can have an objectively reasonable expectation of privacy in a tent on private property’ ” (Whiting v. State (2005) 389 Md. 334, 362 [885 A.2d 785, 801-802], quoting Gooch, at p. 677), squatters on public or private property who are present in violation of the governing law have no expectation of privacy in shelter they have unlawfully brought to the land or appropriated for occupancy thereon. When “an individual ‘resides’ in a temporary shelter on public property without a permit or permission and in violation of a law which expressly prohibits what he is doing, he does not have an objectively reasonable expectation of privacy.” (Thomas, at p. 1334.) The rule of Thomas appears to be followed by the overwhelming weight of authority when the wrongful residence takes place, as it did here, on private property. “[D]efendants who are wrongfully on real property and who thus have no reasonable expectation of privacy . . . cannot protest a search. See . . . G.R. v. State, 638 P.2d 191 (Alaska.Ct.App.1981) (occupants of a cabin who were there without the owner’s consent had no expectation of privacy in the building); State v. Cruz, 15 Kan.App.2d 476, 809 P.2d 1233 (1991) (trespassers in a home had no expectation of privacy in the home) . . . .” (Wood son v. Commonwealth (1997) 25 Va.App. 621, 627 [491 S.E.2d 743, 746]; see Whiting, 389 Md. at pp. 355-356 [885 A.2d at pp. 797-798] [collecting cases involving squatters occupying a cave or dwelling belonging to another].) To be sure, none of the foregoing authorities involve a shelter that was the individual’s own abode that the individual had brought onto the site; in each case, the trespasser or squatter had occupied someone else’s dwelling (or, as noted, a cave). But the Fourth Amendment protects only those privacy interests that society is prepared to recognize as reasonable (Bond v. United States (2000) 529 U.S. 334, 338; Georgia v. Randolph (2006) 547 U.S. 103, 130 (dis. opn. of Roberts, C. J.); but see Kyllo v. United States (2001) 533 U.S. 27, 34 [noting criticism of that rule]), and we do not believe that society is prepared to recognize that a person who carries or wheels his own mobile shelter, whether a tent, a tarpaulin, or a shopping cart (to the extent the latter affords a degree of shelter), and uses the same to facilitate the invasion of land belonging to someone else, enjoys a protected Fourth Amendment interest in the very contrivance that facilitates the person’s maintenance of the trespass. (Cf. Whiting, supra, 389 Md. at pp. 356-357 [885 A.2d at p. 798] [citing a Hawaii decision giving Fourth Amendment protection to a squatter’s shelter when the state had long acquiesced in its presence on public land].) Even a private automobile whose owner is using it to trespass is subject to a warrant less search, for the driver of a “vehicle . . . parked on the property of another person where it had no right to be” (Commonwealth v. Bosworth (1983) 310 Pa.Super.Ct. 378, 381 [456 A.2d 661, 663] has no protected Fourth Amendment interest against the search or seizure of that vehicle. In sum, we accept a broad rule that “a defendant lacks a reasonable expectation of privacy in a dwelling unlawfully located on property belonging to the government or a third party” (State v. Adams (Ariz.Ct.App. 2000) 197 Ariz. 569, 573 [5 P.3d 903, 907]), especially if the defendant brought the abode to another’s property in order to maintain a trespass.
Accordingly, we hold that the trial court properly denied defendant’s motion to suppress evidence.
C. Denying Motion to Exclude Evidence of Violent Threats and Conduct
Defendant claims that the trial court erred by permitting the prosecution, over his objection on grounds of undue prejudice (Evid. Code, § 352), to introduce evidence of his threats to bar patrons and Stanley Richard Arney before he killed Wheeler. In defendant’s view, the evidence was substantially more prejudicial than probative (ibid.) and improper character evidence (id., § 1101, subd. (a)). Defendant further claims that the evidence was sufficiently inflammatory for its admission to violate his due process right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15, of the California Constitution.
The People argue on appeal that defendant has forfeited his claims because he did not object on grounds of Evidence Code sections 352 and 1101, subdivision (a), in the proceedings below. We do not agree. The prosecution moved in limine to admit the evidence notwithstanding Evidence Code section 352, and defendant opposed the motion in a pretrial hearing during which defense counsel also mentioned the impropriety of introducing testimony about whether defendant was “historically, a violent person”—in other words, a person whose character would give him a propensity to murder. Because Evidence Code sections 352 and 1101, subdivision (a) were at issue below, defendant’s claim is preserved for appeal. (For that reason, we need not take up defendant’s contingent claim that if counsel should have done more to preserve the issue for review, counsel’s failure to do so constituted constitutionally ineffective assistance of counsel.) We may also entertain defendant’s state and federal due process claims, given that they raise on appeal an argument about the additional legal consequences of the court’s purportedly erroneous ruling. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5, 997, 1000, 1024, 1029, 1031, 1055.) In such a case, however, “rejection on the merits of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases, and we therefore provide none.” (Id. at p. 990, fn. 5.) As we will explain, we find defendant’s state-law claims to be without merit and therefore will not further discuss his due process claims.
Introducing evidence of defendant’s violent threats, which showed a willingness to kill a number of bar patrons and to inflict possibly lethal force on Arney because those individuals were troubling defendant, when accompanied by evidence that defendant killed Wheeler because Wheeler had troubled him, did not violate Evidence Code sections 352 or 1101, subdivision (a). Evidence of such threats is relevant to prove intent because “a generic threat is admissible to show the defendant’s homicidal intent where other evidence brings the actual victim within the scope of the threat.” (People v. Lang (1989) 49 Cal.3d 991, 1014.) Accordingly, evidence of the statements was “not excludable under Evidence Code section 1101.” (Ibid.) Nor was the evidence excludable under Evidence Code section 352 given that it “was probative of an essential element of the prosecution’s case and not cumulative.” (Ibid.) The Lang rule might not apply when “ ‘the lapse of time[] or other evidence suggests that the state of mind was transitory and no longer existed at the time of the charged offense’ ” (id. at pp. 1014-1015), but no such evidence existed here: defendant engaged in a chain of violent threats and conduct in the hours leading up to his killing of Wheeler.
D. Seated Jurors’ Exposure to Defendant’s Parolee Status
Defendant claims that the trial court erred in denying his motion for a mistrial after several perspective jurors and, the record suggests, two seated jurors heard one prospective juror allude to defendant’s status as a parolee. Defendant further claims that the court’s failure to provide a sufficient remedy to cure the reference to his parole status violated his due process right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15, of the California Constitution.
During voir dire, the following exchange occurred. As noted, it appears to have occurred in the presence of two prospective jurors who eventually were seated:
“THE COURT: . . . . [¶] Now, your wife is a parole agent and is there anything about your wife’s employment, what she talks about at home, whether she talks a lot or not that much about her caseload, that causes you to sense that you have a bias or a preference in this type of litigation.
“PROSPECTIVE JUROR: Yes, well, I mean, to some degree. I mean, I am familiar with this particular case.
“THE COURT: Oh, you are familiar with this particular case. And from
“PROSPECTIVE JUROR: She was the agent of record.
“THE COURT: Okay. So you are talking about just having read the newspaper and that type of thing.
“PROSPECTIVE JUROR: Having had discussions in my own home.
“THE COURT: Okay, all right. I think under the circumstances he probably should be excused for cause.” The trial court, whose oblique responses to the prospective juror’s answers shows its awareness of the sensitivity of the situation, additionally showed such awareness when it denied the prosecutor’s request to conduct further voir dire of the prospective juror, saying, “I really don’t want you to ask him any questions.” The court then excused the prospective juror.
Defense counsel, arguing that the prospective juror’s comments had “inappropriately disclosed to the whole jury panel the fact that our client . . . had a prison sentence and was on parole” and that the event had “tainted the panel,” moved for a mistrial. The prosecutor replied that she “did not hear the [prospective] juror ever say parole, nor prison. [¶] . . . I don’t think it likely that any layperson is necessarily going to make that connection.” Defense counsel noted, accurately, that the trial court had uttered the word “parole,” and the court recognized that it had said “parole agent.” Nevertheless, the court ruled that the exchange had not tainted the seated jury and denied defendant’s motion.
“A motion for mistrial should be granted only when a party’s chances of receiving a fair trial have been irreparably damaged.” (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1029.) A trial court may find irreparable damage if it is “ ‘apprised of prejudice that it judges incurable by admonition or instruction.’ ” (People v. Avila (2006) 38 Cal.4th 491, 573.) We review a ruling denying a motion for mistrial for abuse of discretion. (Lewis and Oliver, at p. 1029.) This is so because “[w]hether a particular incident is incurably prejudicial requires a nuanced, fact-based analysis” (People v. Chatman (2006) 38 Cal.4th 344, 369-370), one that the trial court is much better positioned to undertake than are we.
When confronted with similar situations, i.e., situations in which a witness surprises the court and counsel with a reference to a criminal defendant’s criminal history that would not be easily understood by lay jurors, our Supreme Court has held that trial courts did not abuse their discretion in denying mistrial motions. When a “reference to ‘Chino Institute’ [meaning the California Institution for Men, a prison located in Chino, San Bernardino County] was brief and isolated, the trial court properly denied the motion for mistrial.” (People v. Valdez (2004) 32 Cal.4th 73, 128.) “In . . . a case involving a similar situation, we upheld the trial court’s denial of a motion for mistrial, finding it ‘doubtful that any reasonable juror would infer from the [witness’s] fleeting reference to a parole office that defendant had served a prison term for a prior felony conviction.’ ” (Ibid.) In this case, the prospective juror stated in passing that his wife was a parole agent. The trial court asked if the employment of the prospective juror’s wife could bias the prospective juror in this “type of litigation,” referring generally to criminal proceedings and not the proceeding against defendant specifically. The prospective juror stated that he was “familiar with” defendant’s “particular case” and that his wife “was the agent of record,” remarks that, if another prospective juror was paying close attention, could have signaled a clue to defendant’s parolee status. But the court, perhaps recognizing a looming problem, immediately diverted the thread of the colloquy, stating: “So you are talking about just having read the newspaper and that type of thing.” The prospective juror followed the diversionary thread the court had initiated and referred, without elaboration, to “discussions in my own home,” which the other prospective jurors could well have interpreted as discussions about the content of the newspaper. We discern no violation of state law.
Valdez forecloses defendant’s state law claim, and because defendant’s due process claims assert additional legal consequences of the trial court’s ruling, those claims must “necessarily” also be rejected. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 990, fn. 5.)
E. Testimony Regarding Defendant’s Wish to Speak With His Lawyer
Citing Doyle v. Ohio (1976) 426 U.S. 610, defendant claims his constitutional rights were violated when a police sergeant testified that defendant, after being taken into custody, said that he “wanted his lawyer and a phone call.” Defendant moved for a mistrial as a result of the testimony, but the trial court denied the motion, calling the testimony “offhand,” i.e., insignificant in the context of the sergeant’s lengthy testimony. Defendant contends that the testimony improperly revealed that he had invoked his right to remain silent (Miranda v. Arizona (1966) 384 U.S. 436) by requesting an attorney.
A Santa Cruz police sergeant testified that defendant resisted his efforts to collect evidence by swabbing blood from defendant’s face. The sergeant told defendant that he did not have the right to refuse the collection of evidence, but defendant continued to resist until another police sergeant restrained him. On direct examination, in response to the prosecutor’s question about how defendant reacted to the sergeant’s efforts to collect evidence, the sergeant testified that the “only response he gave the whole time I was with him, trying to collect evidence, was that he wanted his lawyer and a phone call.”
In Doyle v. Ohio, supra, 426 U.S. at page 618, the United States Supreme Court held that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” (Fn. omitted.) “A similar process of reasoning supports the conclusion that comment which penalizes exercise of the right to counsel is also prohibited. [Citations.]” (People v. Crandell (1988) 46 Cal.3d 833, 878.)
We agree with the trial court. Even if Doyle error occurred, there was no prejudice, i.e., “this brief and mild reference to the fact that defendant asked for an attorney did not prejudice defendant.” (People v. Huggins (2006) 38 Cal.4th 175, 199.) The focus of the sergeant’s testimony was not on defendant’s exercise of a constitutional right, but his behavior while two police sergeants were working to collect evidence from his face and hands. Viewed in isolation, the testimony about defendant’s request sounds constitutionally portentous. But in fact it was a fleeting reference of minimal significance, as becomes apparent when it is described in context. As noted, a “motion for mistrial should be granted only when a party’s chances of receiving a fair trial have been irreparably damaged.” (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1029.) Nothing close to irreparable harm occurred here.
F. Permitting the Jury to See a Photograph of Defendant in Jail Attire
Defendant claims that the trial court erred by admitting into evidence, over his objection under Evidence Code section 352, and permitting the jury, during deliberations, to see a lineup photograph of him in which he was attired in orange jail house clothing, evidently as a result of a prior arrest or conviction. In defendant’s view, the photograph constituted evidence that was substantially more prejudicial than probative (see ibid.) and admitting it into evidence violated state law. Defendant further claims that the photographic evidence was sufficiently inflammatory for its admission to violate his due process right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15, of the California Constitution.
We agree with defendant that the trial court erred in admitting the photographic evidence, but find neither prejudice under state law nor due process violations under the federal or state constitutions.
The People argue that defendant fails to show that the jury would understand that the photograph of him in jail attire meant that he had been arrested or convicted for a prior bad act or crime, as opposed to his arrest on suspicion of murdering Wheeler. We disagree. The jurors had received evidence in the form of a police officer’s and police lieutenant’s testimony that defendant was arrested about 10:00 p.m. The prosecutor told the jury that witnesses from the Watering Hole bar saw the photograph about 10:30 p.m. As defendant asserts, it would “stretch[] the time line and the record to the breaking point” for us to conclude that the jury might have thought the photograph was taken following defendant’s arrest for murdering Wheeler and transmitted to witnesses in half an hour.
Defendant argues that permitting the jurors to see the photographic evidence compounded other errors and constitutional violations that he asserts occurred insofar as they alerted jurors to his status as a prior offender. (See also defendant’s claim of cumulative error, post, p. 3.)
Defendant is correct that the trial court erred by admitting the photographic evidence. “[I]t is established that evidence of mere arrests is inadmissible because it is more prejudicial than probative.” (People v. Lopez (2005) 129 Cal.App.4th 1508, 1523 [referring to prior arrests (see id. at pp. 1520, 1521)].) Such evidence creates a risk of “serious prejudice.” (Id. at p. 1523.) “Thus, none of the arrest evidence should have been admitted, due to the danger that it would . . . show . . . an untrustworthy and criminal character.” (Ibid.) Lopez relied on our Supreme Court’s reminder that “it has long been held that evidence of an accused’s prior arrests is inadmissible” (People v. Anderson (1978) 20 Cal.3d 647, 650) because it creates an “extreme danger of prejudice” (id. at p. 651).
For all that, however, we disagree with defendant that he incurred prejudice under state law. Given the virtually airtight evidence against him, notably the eyewitness testimony of him carrying out the killing of Wheeler and the supporting DNA evidence, we discern no reasonable probability that, but for the asserted error, the outcome would have been more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.) Nor we do discern any due process violation. “[F]undamental fairness [is] the touchstone of due process . . . .” (Gagnon v. Scarpelli (1973) 411 U.S. 778, 790.) Permitting the deliberating jurors to see the photographic evidence was a flaw in the trial, but in the context of all the evidence adduced, the panoply of procedural protections afforded defendant, and representation of him by skilled and able counsel, the error did not render the trial fundamentally unfair. “A state-law violation is not automatically a violation of federal constitutional due process—and certainly, the violation here does not offend that guaranty.” (People v. Ashmus (1991) 54 Cal.3d 932, 984, fn. 14.)
G. Cumulative Error in Giving of Evidence
Defendant contends that the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15 of the California Constitution were violated by the cumulative errors that occurred during the giving of evidence at trial. Defendant refers specifically to claims he has made that the jury improperly received inadmissible character evidence.
We find no due process violation. Defendant was “ ‘ “ ‘entitled to a fair trial but not a perfect one.’ ” ’ ” (People v. Os band (1996) 13 Cal.4th 622, 702 (per curiam).) The trial’s evidentiary phase was not free of error, but the procedures were fair at the fundamental level, and that is all that due process requires. (See Gagnon v. Scarpelli, supra, 411 U.S. at p. 790.)
II. Instructional Claims
A. Refusing to Instruct on Third-Party Culpability
Defendant claims that the trial court erred in refusing, despite a request by the defense, to give an instruction that would have directed the jury to consider the defense theory that William Syvertsen killed Wheeler. Defendant further claims that the court’s action violated his due process right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15, of the California Constitution, his right to present a meaningful defense under those guaranties, and a right he discerns “to a jury determination on all issues” under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 16 of the California Constitution.
Nick Mulligan testified that about the time Wheeler was killed, Mulligan encountered Syvertsen, whom Mulligan knew by the name Dump Truck Billy. Mulligan told Syvertsen he had just been drinking with Wheeler at a location called “the point.” According to Mulligan, Syvertsen replied that “he might head up that way or he might . . . head over by Safe way.”
The third-party-culpability instruction that defendant requested would have instructed the jury that the jury must consider defendant’s case that a third party killed Wheeler and that defendant need not prove “this fact beyond a reasonable doubt”; rather, “it is only required that such evidence raise a reasonable doubt in your minds of the defendant’s guilt” in order to entitle him to a verdict of not guilty. In denying defendant’s request, the trial court stated without elaboration that it did not “think it’s an appropriate pinpoint instruction. I don’t think it’s appropriate to pinpoint that particular issue in a case.”
As defendant notes, a defendant has a right on request to a pinpoint instruction on a particular defense theory as long as it does not highlight specific evidence regarding the defense. (People v. Earp (1999) 20 Cal.4th 826, 886.) It may be that this rule requires an instruction on request to highlight a defendant’s theory that a third party, not the defendant, committed the charged crime. (See id. at p. 887.)
Before an instruction on third-party culpability may properly be given, however, there must be substantial evidence capable of raising a reasonable doubt about the defendant’s guilt and that evidence must link the third party to the crime. Evidence bearing on nothing more than a third party’s motive or opportunity to commit the crime is insufficient to raise such a reasonable doubt and bring a case within the ambit of Earp. (People v. Prince (2007) 40 Cal.4th 1179, 1242.) Under Prince, the jury need not have given any weight to the evidence about William Syvertsen’s rumination that he might head in the direction of Wheeler, because it did not link him to the murder of Wheeler. The evidence, viewed as a whole, only postulated that one or both of the Syvertsen brothers may have held a grudge against Wheeler and that William Syvertsen had the opportunity to kill him. A jury need not be, and must not be, instructed on a third-party-culpability theory for which there is no admissible supporting evidence: “a criminal defendant is not entitled to instructions . . . on legal theories which are erroneous.” (People v. Gutierrez (1985) 171 Cal.App.3d 944, 951.) Accordingly, we reject defendant’s claim of state-law error.
Earp further held that under circumstances similar to those present here, in which the defense’s argument informed the jury of the defense’s theory and the jury was properly instructed about reasonable doubt, any failure to give the instruction was harmless under the state-law reasonable probability prejudice test of People v. Watson, supra, 46 Cal.2d at page 836.
We also find defendant’s constitutional claims unavailing. Defendant has pointed us to no federal authority holding that an instruction on third-party culpability is constitutionally required in circumstances applicable to this case. The authority binding on us on which he relies is not helpful to him. Mathews v. United States (1985) 485 U.S. 58, holds only (and, moreover, not on any discernable constitutional ground) that “a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Id. at p. 63.) That presupposes the existence of sufficient evidence, and as we are explaining, here there was none. (People v. Prince, supra, 40 Cal.4th at p. 1242.) The federal rule is the same as the rule enunciated in Prince: a criminal defendant is “not entitled to a jury instruction incorporating [a] theory” that “is wrong as a matter of law.” (U.S. v. Thompson (10th Cir. 2008) 518 F.3d 832, 857, fn. 13 [addressing a statute of limitations–based claim of bar, not a constitutional claim].) Defendant also invokes People v. Rogers (2006) 39 Cal.4th 826, for the suggestion that refusal to give an instruction on a defense theory violates the Sixth Amendment, but Rogers states, at most, only that if a state-law instructional error “deprives the defendant of the federal due process right to present a complete defense” (id. at p. 868, fn. 16) the defendant is entitled to some type of relief, apparently reversal of the judgment. Rogers does not stand for the proposition that a defendant has the right to have the jury given instructions lacking a sufficient evidentiary basis.
B. Refusing to Instruct on Certain Forms of Manslaughter
Defendant claims that the trial court erred in refusing to instruct on voluntary manslaughter and involuntary manslaughter committed in a state short of unconsciousness.
After discussing instructions regarding lesser included offenses with the parties, the trial court said it would instruct on involuntary manslaughter committed in an unconscious state, but would not instruct on the other two theories. The court said it saw no evidence of heat of passion or imperfect self-defense that would justify giving a voluntary manslaughter instruction. The prosecutor agreed, commenting that because murder in this case would be a specific intent crime under the evidence the jury heard, any voluntary intoxication either “negates it completely and you don’t have murder or voluntary [manslaughter] and you’ve got [involuntary manslaughter,] or it doesn’t negate it and then you’ve got murder.” In turn, defense counsel argued that “voluntary manslaughter is a non statutory concept” that could encompass vitiation of a murder charge by means of voluntary intoxication. In the view of defense counsel, a killing that would otherwise constitute murder could be reduced to voluntary manslaughter by voluntary intoxication short of unconsciousness, and if the actor killed after reaching an unconscious state, then the crime would be involuntary manslaughter. The court disagreed with defense counsel and proceeded to instruct the jury in accordance with its decision.
1. Legal Background
a. Lesser Included Forms of Unlawful Homicide
Voluntary manslaughter is legally deemed to be a lesser included offense of murder with express malice, i.e., intentional murder (People v. Rios (2000) 23 Cal.4th 450, 460-461), the only form of murder at issue in this case. Murder contains an element or requirement of malice aforethought, whereas the various forms of manslaughter at issue here, i.e., voluntary manslaughter or involuntary manslaughter but not vehicular manslaughter, are, either in law, in fact or both (see id. at pp. 470-471 (conc. opn. of Mosk, J.)), lacking that element. As for involuntary manslaughter, that offense “is ordinarily a lesser offense of murder.” (People v. Abilez (2007) 41 Cal.4th 472, 515.) But a defendant who claims voluntary intoxication is entitled to an instruction on involuntary manslaughter only if there is evidence that the voluntary intoxication rendered the defendant unconscious. (Id. at p. 516.)
b. Instructing on Lesser Included Offenses
People v. Huggins, supra, 38 Cal.4th 175, sets forth what we believe to be the authoritative rule in the difficult area of instructional requirements on lesser included offenses. “A criminal defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and an erroneous failure to instruct on a lesser included offense constitutes a denial of that right. To protect this right and the broader interest of safeguarding the jurys’ function of ascertaining the truth, a trial court must instruct on an uncharged offense that is less serious than, and included in, a charged greater offense, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged greater offense are present. [Citations.] [¶] But this does not mean that the trial court must instruct sua sponte on the panoply of all possible lesser included offenses. Rather, . . . ‘ “such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude[]” ’ that the lesser offense, but not the greater, was committed.” ’ [Citation.] The classic formulation of this rule is expressed in People v. Webster [1991] 54 Cal.3d 411, 443: ‘When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so.’ ” (Id. at p. 215.)
2. Refusing to Instruct on Involuntary Manslaughter Even if Defendant Was Not Unconscious
Defendant argues that the “apparent view that involuntary manslaughter is inapplicable absent intoxication to the point of unconsciousness was incorrect.” The law on that point may have been unclear when defendant’s appellate counsel was composing defendant’s opening brief, but, as alluded to above, the recent case of People v. Abilez forecloses his claim. Abilez held: “ ‘When a person renders himself or herself unconscious through voluntary intoxication and kills in that state, the killing is attributed to his or her negligence in self-intoxicating to that point, and is treated as involuntary manslaughter. “Unconsciousness is ordinarily a complete defense to a charge of criminal homicide. [Citation.] If the state of unconsciousness results from intoxication voluntarily induced, however, it is not a complete defense. [Citation.] . . . [I]f the intoxication is voluntarily induced, it can never excuse homicide. [Citation.] Thus, the requisite element of criminal negligence is deemed to exist irrespective of unconsciousness, and a defendant stands guilty of involuntary manslaughter if he voluntarily procured his own intoxication.” ’ ” (People v. Abilez, supra, 41 Cal.4th at p. 516.) Abilez made clear that a defendant who is intoxicated but not unconscious is not entitled to an involuntary manslaughter instruction. Abilez apparently found no error in a trial court’s failure to instruct on involuntary manslaughter given that the “evidence here shows defendant had consumed some unknown amount of alcohol, but there was no evidence he was so intoxicated that he could be considered unconscious.” (Id. at p. 516.) That is true here too. There was no evidence that defendant was intoxicated to the point of unconsciousness when he attacked Wheeler. In light of the evidence presented here, the trial court did not err in refusing to give an involuntary manslaughter instruction.
3. Refusing to Instruct on Voluntary Manslaughter
The trial court’s refusal to give a voluntary manslaughter instruction was also correct. The only fair reading of the totality of People v. Rios, supra, 23 Cal.4th 450, and especially id. at pages 461-463 and 467-470, is that voluntary manslaughter is available as a lesser included offense of intentional murder—the only kind for which there was any evidence here, contrary to defendant’s view that Wheeler’s death might have resulted from acts accompanied by a mental state akin to that required for implied malice murder but without malice aforethought—when malice aforethought is negated and the crime is reduced to voluntary manslaughter by the existence of a “sudden quarrel or heat of passion” (§ 192, subd. (a)) or the “judicially developed theory” (Rios, at p. 465) of imperfect self-defense. Beyond those two theories, we know of no authority, nor does defendant cite any, under which an intentional murder may be reduced to voluntary manslaughter by reason of voluntary intoxication or any other circumstance. Accordingly, we reject defendant’s claim.
Moving to another point, defendant rummages through the record in an effort to show that there might be some evidence from which the jury could have concluded that he could have held a “bare” but, for murder, legally insufficient intent to kill, i.e., not sufficiently wrongful or deliberate. We must remind defendant of the state of the record. The only evidence was that defendant was roaming the Watering Hole bar before the murder threatening various customers with death or great bodily harm. Defendant continued to utter similar threats on leaving the bar and backed them up by brandishing or wielding his shovel blade. He acted on his threats when Wheeler presented a sufficient irritation to him, whether by laughing at him or for some other reason that was not adduced. All the evidence was that defendant intended to kill, necessarily meaning to kill with malice aforethought unless one of two legal excuses, available in principle but not supported by any evidence in this case, reduced the crime to voluntary manslaughter. There was no evidence to the contrary.
C. Adequacy of Pattern Instruction on Voluntary Intoxication
Defendant claims that the language of CALCRIM No. 625, by using the permissive “may” rather than a mandatory term, violated his due process right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15, of the California Constitution, his right to present a meaningful defense under those guaranties, and a right he discerns “to a jury determination on all issues” under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 16 of the California Constitution.
The version of CALCRIM No. 625 that the trial court gave to the jury provided:
“You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation, or 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 willingly assuming the risk of that effect.
“You may not consider evidence of voluntary intoxication for any other purpose.”
Defendant argues that the use of “may” in the instruction’s first paragraph told the jury it need not consider evidence of his voluntary intoxication if it did not wish to do so, thereby telling the jury in effect that it need not consider the defense case if of a mind not to do so. (See People v. Stevenson (1978) 79 Cal.App.3d 976, 987.)
Defendant may be correct that the instruction’s language is imperfect insofar as, viewed in isolation, it could be viewed as giving the jury an option it did not enjoy. But with regard to criminal trials, “not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ‘ “whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process.” ’ [Citation.] ‘ “[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” ’ [Citations.] If the charge as a whole is ambiguous, the question is whether there is a ‘ “reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ ” (Middleton v. McNeil (2004) 541 U.S. 433, 437.)
Other instructions told the jury that it was to consider all of the evidence. “You must decide what the facts are,” the trial court instructed. “It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial.” “In deciding whether the People have proved their case beyond a reasonable doubt,” the court further instructed, “you must impartially compare and consider all the evidence that was received throughout the entire trial.” (Italics added.)
The overall charge told the jurors that they were to consider all of the evidence presented by the prosecution and by defendant, but, in the limiting instruction with which defendant finds fault, that it could consider the voluntary intoxication evidence only in deciding whether defendant acted with an intent to kill, with deliberation and premeditation, or was unconscious when he acted. There was no impairment of defendant’s constitutional rights.
D. Instructing on Flight and Consciousness of Guilt
Defendant claims the trial court erred by instructing the jury that it could consider his flight from the scene as evidence of consciousness of guilt. He contends that there was insufficient evidence of any such flight. He claims additionally that the court’s action had the additional legal consequence of violating his right to due process of law under the Fifth and Fourteenth Amendments to the federal Constitution and article I, sections 7 and 15 of the California Constitution.
The jury heard evidence that after defendant had finished his fatal beating of Wheeler, he walked away and kept going. Aid for the victim was summoned not by defendant, the jury could infer from the testimony at trial overall, but by David Schneider, who called 9-1-1.
The trial court gave the jury an instruction derived from the CALCRIM No. 372 pattern instruction. The court instructed: “If the defendant fled or tried to flee immediately after the crime was committed, . . . that conduct may show that he was aware of his guilt. If you conclude the defendant fled or tried to flee it is up to you to decide the meaning and importance of that conduct[;] however, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
In recent analyses of this issue, well postdating People v. Green (1980) 27 Cal.3d 1, overruled on another ground as stated in People v. Martinez (1999) 20 Cal.4th 225, 239, on which defendant relies in part, the California Supreme Court has “explained that the flight instruction, as the jury would understand it, does not address the defendant’s specific mental state at the time of the offenses, or his guilt of a particular crime, but advises of circumstances suggesting his consciousness that he has committed some wrongdoing.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1160, italics omitted.) “In this context, flight ‘requires neither the physical act of running nor the reaching of a faraway haven’ but it does require ‘a purpose to avoid being observed or arrested.’ ” (People v. Jurado (2006) 38 Cal.4th 72, 126.) Nor need the suspect have resisted arrest for the instruction to be given. (People v. Carter (2005) 36 Cal.4th 1114, 1182.) For example, a suspect’s decision to leave a house where a crime occurred rather than stay on the premises warrants giving an awareness of guilt instruction because “[f]rom these facts, the jury could reasonably infer that defendant’s decision not to stay in the house, but instead to leave, manifested a consciousness of guilt.” (People v. Abilez, supra, 41 Cal.4th at p. 522.)
Thus, contrary to defendant’s urging, the evidence that he was not running when caught, did not resist arrest, and was not engaged in headlong flight after fatally beating Wheeler is of no avail to him. The jury was entitled to consider whether defendant showed awareness of guilt by leaving the location of the assault on Wheeler given that defendant failed to personally aid or seek help for Wheeler, who was obviously and gravely injured. People v. Jurado, supra, 38 Cal.4th 72, is instructive in this regard: “Although there was a call box around 20 yards from the culvert in which Holloway’s body had been placed, defendant did not use the call box to summon aid . . . . Instead, defendant . . . walked a half-mile to a 7-Eleven [s]tore, along the way hiding in a tree the scissors jack that had been used to kill Holloway, before calling a friend for assistance. Defendant’s failure to use the call box, and the secreting of the murder weapon, support an inference that in leaving the crime scene defendant acted with a purpose to avoid observation and arrest.” (Id. at p. 126.)
In sum, the evidence suggested flight or an attempt to flee, albeit in an undramatic fashion, and not only justified but required giving the instruction to which defendant objects. (Pen. Code, § 1127c.) There was no violation of state law and, as we note in passing although we are not required to do so (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 990, fn. 5), no violation of due process (see People v. Zambrano, supra, 41 Cal.4th at pp. 1159-1160).
E. Instructing on Reasonable Doubt
To preserve the claim for review in federal court, defendant challenges the constitutionality of the standard reasonable doubt instructions given to the jury. This claim was rejected recently in People v. Campos (2007) 153 Cal.App.4th 1088, 1091-1093, and defendant offers no reason to depart from the reasoning of that decision, or from the holdings of any number of other federal and state decisions that have upheld the validity of California reasonable doubt instructions generally. We reject the claim in turn.
III. Facial and As-Applied Constitutional Claim
Defendant claims in effect that the Legislature, by eliminating voluntary intoxication as a defense to implied malice murder, deprived him of his constitutional rights. We do not agree.
The Legislature definitively eliminated voluntary intoxication as a defense to implied malice murder in order to abrogate the holding of People v. Whitfield (1994) 7 Cal.4th 437, in light of Justice Mosk’s persuasive and exhaustive dissent in that case (id. at pp. 456-477).
“ ‘The decisive problem with Whitfield,’ ” a key legislative analysis noted, “is that it contradicts the specific intent doctrine it purports to serve. California law provides that aggravated drunk driving can increase a defendant’s liability for a vehicular homicide to a second-degree murder. Post Whitfield, however, intoxication, if sufficiently severe, can simultaneously mitigate liability to involuntary or vehicular manslaughter by negating implied malice. Allowing the same fact to both aggravate and mitigate liability is contradictory and confusing to juries. Justice Mosk noted this problem [in] his dissenting opinion in Whitfield. In effect, Whitfield created a strained interpretation of California homicide law and created a needless loophole that is suspiciously close to the legislatively discredited diminished capacity defense.” (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 121 (1994-1995 Reg. Sess.) July 11, 1995, p. 5.) Acting according to its view that it made no sense for drunkenness to be a defense to vehicular murder based on drunkenness, the Legislature amended section 22, subdivision (b), so that it permits the use of intoxication evidence to negate only express and not implied malice (Stats. 1995, ch. 793, § 1, p. 6149), and that remains the state of the law. (See generally People v. Timms (2007) 151 Cal.App.4th 1292, 1296-1298; see also People v. Turk (2008) 164 Cal.App.4th 1361, 1374-1375.)
Defendant does not necessarily disagree with the Legislature’s abrogation of Whitfield insofar as vehicular murder caused by voluntary intoxication is concerned. But he argues that in other cases voluntary intoxication should be a defense to a charge of particular crimes involving certain culpable mental states. He calls the current system “patently arbitrary” and senseless and argues that it must therefore be unconstitutional.
We apply the rational basis test to defendant’s claim. (See People v. Wilkinson (2004) 33 Cal.4th 821, 838.) But that does not settle the matter. Defendant’s claim is that the Legislature’s classification scheme is constitutionally irrational.
We are not persuaded. Whether voluntary intoxication should be a defense to any crime is a policy choice that has traditionally been a matter of legislative prerogative. The division of crimes into general intent and specific intent offenses both reflects and encapsulates this prerogative. The Legislature in California, like parliamentary bodies around the world, has tended to make offenses involving goal-directed and purposeful behavior specific intent crimes, meaning by definition that voluntary intoxication is a defense if the evidence of such intoxication satisfies the trier of fact that the actor was incapable of formulating a relatively sophisticated plan leading to the accomplishment of the offense. In other words, “general intent” and “specific intent” are shorthand devices for contrasting offenses that, as a matter of policy, may be punished despite the actor’s voluntary intoxication (general intent) with offenses that, also as a matter of policy, may not be punished in light of such intoxication if it negates the offense’s mental element (specific intent). (People v. Hood (1969) 1 Cal.3d 444, 455-458.) Evidence of voluntary intoxication may be introduced to negate an element of offenses requiring relatively complex cogitation—a mental function integral to many crimes that contain a “definition [that] refers to [the] defendant’s intent to do some further act or achieve some additional consequence . . . .” (see id. at p. 457)—because alcohol can interfere with such intent (id. at p. 458).
A constitutional challenge to this state of affairs was rebuffed in Montana v. Egelhoff (1996) 518 U.S. 37, 53 (lead opn.); accord, id. at pages 56-60 (conc. opn. of Ginsburg, J.). In her possibly authoritative (see People v. Timms, supra, 151 Cal.App.4th at p. 1299), concurrence, Justice Ginsburg held that “[s]tates enjoy wide latitude in defining the elements of criminal offenses” (Egelhoff, at p. 58 (conc. opn. of Ginsburg, J.)), including a culpable mental state (ibid.), and that as far as a criminal defendant’s due process rights are concerned “[d]efining mens rea to eliminate the exculpatory value of voluntary intoxication does not offend a ‘fundamental principle of justice,’ given the lengthy common-law tradition, and the adherence of a significant minority of the States to that position today.” (Id. at pp. 58-59 (conc. opn. of Ginsburg, J.).) That statement by Justice Ginsburg, in our view as well as in the view of Timms (151 Cal.App.4th at pp. 1299-1301), establishes that the Legislature’s modification of subdivision (b) of section 22 to definitively remove a mental state induced by voluntary intoxication from the mental state or states available to negate implied malice murder does not offend due process. The alteration provided a definition of crime and did not create an evidentiary rule that would have excluded otherwise relevant evidence.
In sum, defendant fails to persuade us that California’s penal statutory scheme is unconstitutional notwithstanding that voluntary intoxication is a defense to some crimes and not others, particularly implied malice murder. He urges that People v. Timms, supra, 151 Cal.App.4th 1292, was wrongly decided, but we find Timms well-reasoned and persuasive.
IV. Global Cumulative Error Claim
Defendant contends that the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15 of the California Constitution were violated by the cumulative errors that occurred during the entire proceedings.
We find no due process violation. As noted, defendant was “ ‘ “ ‘entitled to a fair trial but not a perfect one.’ ” ’ ” (People v. Os band, supra, 13 Cal.4th at p. 702.) The trial was not free of error, but it was fundamentally fair, and that is all that due process requires. (See Gagnon v. Scarpelli, supra, 411 U.S. at p. 790.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mihara, Acting P. J., McAdams, J.