Opinion
A154211
10-02-2019
THE PEOPLE, Plaintiff and Respondent, v. KE'JUAN HILL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 178784)
Defendant Ke'juan Hill was convicted by jury of second degree murder and firearm enhancements in connection with the shooting death of Charles H. The trial court imposed a sentence of 40 years to life in prison. On appeal, defendant contends the court erred by (1) giving insufficient instructions on the lesser included offense of involuntary manslaughter, (2) instructing the jury that it could consider his failure to explain or deny adverse evidence, and (3) limiting the scope of testimony provided by a clinical psychologist called by the defense. We find no prejudicial error and therefore affirm.
Defendant was 17 years old at the time of the offense. After a transfer hearing, he was found not suitable for juvenile court. Charles H. was 16 years old when he was killed. Some of the witnesses also were in their teens at the time of the crime. We refer to Charles H. and those witnesses by their first names or initials. (See Cal. Rules of Court, rule 8.90(b).)
I. BACKGROUND
A. The Prosecution's Case
On the evening of March 23, 2012, Charles H. and defendant attended the same house party. Charles H. attended with his female friends N.J., K.T., and Q.J. Defendant attended the party with some of his friends, including William W., who previously had dated N.J. There was testimony that some of defendant's friends were passing around a gun at the party.
Charles H. was gay. When Charles H.'s best friend N.J. was interviewed by police after the shooting, she said defendant never liked Charles H. and tried to rob him the first time they met. N.J. told the police that defendant and his friends bullied Charles H. because Charles H. was gay.
After staying at the party for a short time, Charles H. left with N.J., Q.J., another female friend, and William W. They left because Charles H. felt like something bad was going to happen, and because William W. believed the party was going to get "shot up." The group walked down the street from the party, and William W. then asked that everyone stop and wait for him while he retrieved something from the house. N.J. told the police that defendant told William W. to keep Charles H. there.
After about 10 minutes, William W. returned with defendant and a group of 10 or 11 people. Defendant had his hands in the pocket of his sweatshirt, and his sweatshirt hood was up. Charles H. was sitting on a curb rolling a joint. Defendant approached Charles H., told Q.J. to move out of the way, and asked Charles H. why he was "speaking on" defendant. Charles H. replied, " 'I wasn't speaking on you.' " After some more back and forth, Charles H. told defendant to "stop playing." Defendant grabbed Charles H. by the hair, said " 'I'm not playing,' " and pulled out a gun. Initially he was holding the gun by the barrel, with the handle pointing toward Charles H.'s head. Defendant turned the gun around, tilted Charles H.'s head to the side, and shot him. Charles H. fell to the side. He died from a single gunshot wound to the head. The gun was 18 to 24 inches from his head when it was fired.
K.T. testified that defendant had a reputation for being funny and playing small pranks, but she had never seen him play a prank with a gun. Q.J. testified that she did not hear anyone laughing when defendant confronted Charles H.
Defendant and the other people who were present ran away. K.T., who had remained inside the house, came outside after hearing the shot and recalled that a group of young men appeared to be cheering for defendant, saying " 'Ke'juan, go.' "
A group of young women including K.T., N.J. and Q.J. began walking home. They ran into defendant, who had changed his clothes. The women confronted defendant, but he acted like he knew nothing about the shooting and was not involved.
Police arrested defendant in Kansas City, Missouri, on October 26, 2015.
At the preliminary hearing in June 2016, Q.J. identified defendant as the person who shot Charles H. N.J., however, did not identify defendant. Between sessions of the preliminary hearing and after its conclusion, defendant made several phone calls from jail to friends, in which he expressed his displeasure at Q.J. for coming to court and testifying against him. Defendant wanted his friends to come to court for Q.J.'s second day of testimony. He told a friend to tell "everybody" that Q.J. had testified against him.
B. The Defense Case
Defendant testified that he and Charles H. were friends and played pranks on each other. On March 23, 2012, defendant went to the house party with a group of 11 or 12 friends. Prior to that date, he had never fired or owned a gun. He had held a gun no more than five times. At the party, defendant's friend Jayshawn had a gun that belonged to their friend Poepoe. Jayshawn did not bring bullets for the gun. Poepoe was upset with Jayshawn because there was a rumor that there was going to be a drive-by shooting at the party and Poepoe's gun was useless without bullets.
Poepoe asked defendant to get the gun from Jayshawn, but then Poepoe did not take the gun from defendant, so defendant kept it in the front pocket of his hooded sweatshirt. Defendant testified that he believed the gun was not loaded. He kept the gun when his group decided to leave the party.
As defendant's group was walking, defendant saw Charles H. with his female friends and decided to "go play with" Charles H. Charles H. was seated and was rolling a joint. Defendant walked up to Charles H. and asked why he was "speaking on" defendant. Charles H. denied talking about defendant behind his back. After repeating the same exchange a few times, defendant pulled the gun out of his sweatshirt pocket by the barrel and grabbed Charles H. by his hair. Defendant turned the gun around and it went off, striking Charles H. Defendant did not know how the gun went off or if his finger was on the trigger. He did not know if the gun was pointed at Charles H.'s head.
Defendant ran away. As he ran, he discarded the gun in a parking lot or parking structure. When he got home, he changed his clothes and started walking to his girlfriend's house. On the way, he ran into Charles H.'s friends. K.T. was "tripping" on defendant, and she or one of the other women said " 'What the fuck?' "
Within a few days after the shooting, on the advice of his parents, defendant went to live in Kansas City, Missouri, where he had relatives.
As we discuss further below, Dr. Sam Himelstein testified as a person qualified in the area of clinical psychology, but not as an expert. Dr. Himelstein conducted a psychological evaluation of defendant and an assessment of his intellectual functioning. Dr. Himelstein tested defendant's IQ, which was a borderline score of 70. Defendant's scores suggested he might have trouble with any task that required verbal abilities and articulation and was in the low average range for nonverbal reasoning. Defendant's ability to process routine visual matter was extremely low.
C. Procedural Background: The Charges, Verdict and Sentence
An information charged defendant with murder (Pen. Code, § 187, subd. (a)) and related enhancements, including an allegation that he personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). The jury found him not guilty of first degree murder, but found him guilty of second degree murder and found true the allegation that he personally and intentionally discharged a firearm causing death. The court sentenced defendant to 15 years to life for second degree murder and a consecutive term of 25 years to life for the firearm enhancement. Defendant appealed.
Undesignated statutory references are to the Penal Code.
II. DISCUSSION
A. Instructions on Involuntary Manslaughter
1. Additional Background
Defendant requested that the trial court instruct the jury on involuntary manslaughter (CALCRIM No. 580) as a lesser included offense of the charged crime of murder. Specifically, defendant asked the court to instruct the jury that it could find he committed involuntary manslaughter if Charles H.'s death occurred during defendant's commission of either of two predicate crimes: (1) brandishing a firearm in violation of section 417, subdivision (a)(2), a misdemeanor, or (2) assault with a semiautomatic firearm in violation of section 245, subdivision (b), "an inherently dangerous assaultive felony." The court agreed to instruct on involuntary manslaughter and that brandishing could be a predicate offense, but the court concluded assault could not be a predicate offense in this case.
The court instructed the jury on general principles of homicide (CALCRIM No. 500) and on first and second degree murder (CALCRIM Nos. 520-521). The court then gave an involuntary manslaughter instruction based on CALCRIM No. 580, stating in part: "When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter. [¶] The difference between murder and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk is murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter."
The court continued: "The defendant committed involuntary manslaughter if: [¶] 1. The defendant committed a crime; [¶] 2. The defendant committed the crime with criminal negligence;[] [¶] AND [¶] 3. The defendant's acts caused the death of another person. [¶] . . . [¶] In order to prove murder the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill or with conscious disregard for human life. If the People have not met either of these burdens, you must find the defendant not guilty of murder."
The court defined criminal negligence for purposes of involuntary manslaughter: "Criminal negligence involves more than ordinary carelessness, inattention, or mistake in [judgment]. A person acts with criminal negligence when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable person would have known that acting in that way would create such risk. [¶] In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act."
As to the predicate "crime" (an element of involuntary manslaughter as described in the court's instruction), the court instructed on the offense of brandishing a firearm, basing its instruction on CALCRIM No. 983. The court stated in part: "To prove that the defendant is guilty of the crime, the People must prove that: [¶] 1. The defendant drew or exhibited a firearm in the presence of someone else; [¶] AND [¶] 2. The defendant did so in a rude, angry, or threatening manner."
In addition to instructing on involuntary manslaughter, the court instructed on other theories that could excuse or reduce defendant's culpability. The court instructed on the theory that the shooting was accidental, stating in part that a killing is excused if it occurred "as a result of accident or misfortune" (CALCRIM No. 510). The court also instructed the jury that it could consider evidence that defendant may have suffered from a mental defect in deciding whether he acted with the required mental state for murder, "specifically: malice aforethought" (CALCRIM No. 3428). The instructions on these theories stressed the prosecution had the burden to prove beyond a reasonable doubt that defendant acted with malice and without excuse. Finally, the court instructed on the firearm enhancements alleged in the information (CALCRIM Nos. 3146, 3148, 3149), two of which required proof beyond a reasonable doubt that defendant intentionally discharged a firearm.
2. Analysis
Defendant argues the trial court erred by declining to instruct the jury that he could be convicted of involuntary manslaughter on the theory he committed assault with a semiautomatic firearm (§ 245, subd. (b)) without malice but with criminal negligence. "Under California law, trial courts must instruct the jury on lesser included offenses of the charged crime if substantial evidence supports the conclusion that the defendant committed the lesser included offense and not the greater offense." (People v. Gonzalez (2018) 5 Cal.5th 186, 196 (Gonzalez).) "We review de novo the trial court's failure or refusal to instruct on a lesser included offense." (People v. Vasquez (2018) 30 Cal.App.5th 786, 793 (Vasquez).)
Defendant was charged with murder. Murder is the unlawful killing of a human being with malice aforethought, which can be express or implied. (§§ 187, subd. (a), 188, subd. (a); People v. Bryant (2013) 56 Cal.4th 959, 964.) Express malice is the intent to unlawfully kill. (People v. Perez (2010) 50 Cal.4th 222, 233, fn. 7.) Implied malice has " ' "both a physical and a mental component. The physical component is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life.' [Citation.] The mental component is the requirement that the defendant 'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.' " ' " (Bryant, supra, 56 Cal.4th at p. 965.)
Involuntary manslaughter is a lesser included offense of murder. (People v. Lewis (2001) 25 Cal.4th 610, 645 (Lewis).) Involuntary manslaughter is "the unlawful killing of a human being without malice . . . [¶] . . . [¶] . . . in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection," excepting acts committed in the driving of a vehicle. (§ 192, subd. (b).) Case law has also established that an unlawful killing without malice in the commission of a felony that does not trigger the felony-murder rule is involuntary manslaughter. (See People v. Burroughs (1984) 35 Cal.3d 824, 829, 835, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89; People v. Brothers (2015) 236 Cal.App.4th 24, 33-34 (Brothers) [an unlawful killing without malice during the course of an inherently dangerous assaultive felony is involuntary manslaughter].) The required mental state for conviction of involuntary manslaughter is criminal negligence. (People v. Butler (2010) 187 Cal.App.4th 998, 1007.) While implied malice murder requires the defendant subjectively appreciated the risk involved, involuntary manslaughter requires a showing a reasonable person would have been aware of the risk (an objective standard). (Id. at pp. 1008-1009.)
The basis for defendant's argument on appeal is Brothers, supra, 236 Cal.App.4th at p. 34, in which the Court of Appeal held that "an instruction on involuntary manslaughter as a lesser included offense must be given when a rational jury could entertain a reasonable doubt that an unlawful killing was accomplished with implied malice during the course of an inherently dangerous assaultive felony." Here, as noted, the trial court did instruct on the lesser included offense of involuntary manslaughter, based on the theory defendant brandished a firearm with criminal negligence. Assuming, without deciding, that there was substantial evidence to support an instruction on the second theory of involuntary manslaughter requested by defendant (i.e., an assault with a semiautomatic firearm, without malice but with criminal negligence), we conclude any error in declining to give such an instruction was not prejudicial.
The trial court's decision to instruct the jury on involuntary manslaughter (based on the predicate offense of brandishing a firearm) reflects an implicit determination that there was substantial evidence from which a rational jury could conclude defendant acted with criminal negligence, rather than with malice. In his appellate brief, the Attorney General does not argue the trial court was incorrect on this point. The Attorney General contends, however, that, in light of defendant's testimony that he believed the gun was not loaded, there was no substantial evidence that defendant's conduct satisfied the elements of the alternate predicate crime of assault with a semiautomatic firearm. In light of our conclusion as to prejudice, we need not address this argument.
In general, the failure in a noncapital case to instruct on a lesser included offense supported by substantial evidence is state law error (Gonzalez, supra, 5 Cal.5th at p. 196), and thus is reversible only if the defendant demonstrates that it is " ' "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error" ' " (id. at p. 195, citing People v. Watson (1956) 46 Cal.2d 818, 837). An exception may apply when the defense requests the instruction (as occurred here) and the refusal to give it prevented the defendant from presenting his theory of the case, thus violating the federal due process right to present a complete defense. (People v. Rogers (2006) 39 Cal.4th 826, 868, fn. 16, 872; Vasquez, supra, 30 Cal.App.5th at pp. 792-793.)
Defendant argues briefly that this exception applies here and therefore the purported instructional error should be evaluated under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24, requiring reversal unless the People can show the error was harmless beyond a reasonable doubt. We disagree and conclude there was no violation of defendant's federal constitutional right to present a defense. As summarized in defendant's opening brief on appeal, the defense theory was that "the killing was a prank gone bad, and not planned or intentional. . . . [Defendant] thought the gun was unloaded and didn't work; and when he put the gun to [Charles H.'s] head it went off." The defense was able to present that theory fully, through evidence, instructions and argument.
Defendant testified he confronted Charles H. as part of a prank (i.e., he decided to "play with" Charles H.), and the gun, which he believed was unloaded, unexpectedly went off. The court instructed the jury on the lesser offense of involuntary manslaughter (CALCRIM No. 580) based on the theory defendant brandished the gun with criminal negligence. The court also gave a separate instruction stating defendant was not guilty of murder if the killing was an accident (CALCRIM No. 510). Defense counsel was able to argue forcefully that defendant only meant to play a prank and did not intend to fire the gun, relying in part on the court's instructions on involuntary manslaughter and accident. In these circumstances, the court's decision not to instruct on a second possible predicate crime supporting the involuntary manslaughter theory did not deprive defendant of his federal constitutional right to present a defense. (See Vasquez, supra, 30 Cal.App.5th at p. 793 [defendant has the right to " ' "adequate instructions on the defense theory of the case" ' "], italics added.)
Treating the assumed error as one of state law, we find no reasonable probability defendant would have obtained a more favorable result if the court had instructed on assault with a semiautomatic firearm as a second predicate offense for the involuntary manslaughter theory. Our Supreme Court has stated: "Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (Lewis, supra, 25 Cal.4th at p. 646; accord, Gonzalez, supra, 5 Cal.5th at p. 200.) That is the case here.
The trial court's involuntary manslaughter instruction (CALCRIM No. 580) required the jury to determine the factual question whether defendant acted with malice (an intent to kill or a conscious disregard for life) or instead acted only with criminal negligence. The court instructed that, for defendant to be convicted of murder, the prosecution had to prove "beyond a reasonable doubt that the defendant acted with intent to kill or with conscious disregard for life." This issue also was presented by the court's instruction on possible mental defect (CALCRIM No. 3428), which stated the jury could consider evidence that defendant might have suffered from a mental defect in deciding whether he acted with the required mental state, "specifically: malice aforethought." That instruction, too, stressed the prosecution had to prove beyond a reasonable doubt that defendant acted with malice.
Other instructions required the jury to determine the factual question whether the shooting was accidental. Addressing the defense theory of accident, the court instructed (using CALCRIM No. 510) that defendant was "not guilty of murder if he killed someone as a result of accident or misfortune." The court elaborated that "a killing is excused, and therefore not unlawful, if: [¶] 1. The defendant was doing a lawful act in a lawful way; [¶] 2. The defendant was acting with usual and ordinary caution; [¶] AND [¶] 3. The defendant was acting without any unlawful intent." The prosecution had to prove beyond a reasonable doubt the killing was not excused. Finally, two of the court's instructions on the firearm enhancements (CALCRIM Nos. 3148 and 3149) required the jury to determine whether defendant personally and intentionally discharged the gun, again requiring proof beyond a reasonable doubt.
With this set of instructions, the jury found defendant guilty of second degree murder and found he personally and intentionally discharged a firearm causing Charles H.'s death. In finding both that defendant acted with malice (i.e., either with the intent to kill or with conscious disregard for life) and that he intentionally fired the gun, the jury "necessarily reject[ed] defendant's version of the events." (Lewis, supra, 25 Cal.4th at p. 646.) In our view, it is not reasonably probable that the jury, if presented with a second possible predicate crime supporting the involuntary manslaughter theory (i.e., assault with a semiautomatic firearm), would have reached a more favorable result on the question whether defendant acted with malice. In particular, the jurors' factual determination that defendant intentionally discharged the gun makes it unlikely they would conclude he did not act with at least a conscious disregard for life. Any error in failing to give fuller instructions on involuntary manslaughter was harmless. (See Gonzalez, supra, 5 Cal.5th at pp. 191-192 [true finding on robbery-murder special circumstance showed that jury resolved the factual issue of whether killing occurred in course of robbery so as to support first degree felony murder conviction; error in failing to instruct on lesser included offenses of malice murder therefore was harmless].)
People v. Campbell (2015) 233 Cal.App.4th 148, on which defendant relies, does not persuade us that reversal is required here. In Campbell, the Court of Appeal stated generally that a jury's determination of a factual issue under other instructions does not necessarily render harmless the erroneous omission of instructions on that issue, and held specifically that a felony murder conviction and a true finding on a robbery-murder special circumstance did not render harmless an error in failing to instruct on lesser included offenses of malice murder. (Id. at pp. 167, 172-174.) We note that in Gonzalez, supra, 5 Cal.5th at pp. 195, 200, 209, our Supreme Court reached the opposite conclusion, finding a similar error harmless and relying in part on the principle that a jury's factual findings based on other instructions can establish that the erroneous omission of an instruction is harmless. In any event, for the reasons discussed above, we conclude that, in light of the jury's findings in the present case, there is no reasonable probability that inclusion of the additional involuntary manslaughter instruction requested by defendant would have changed the outcome of the case.
In a footnote, the Gonzales court stated it would not address whether Campbell was correctly decided on the facts presented in that case. (Gonzalez, supra, 5 Cal.5th at p. 206, fn. 6.)
B. Instruction on Failure to Explain or Deny Adverse Evidence
The trial court, over a defense objection, instructed the jury with CALCRIM No. 361, as follows: "If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure."
Defendant contends the court erred by giving this instruction. We review claims of instructional error de novo. (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066.) CALCRIM No. 361 "applies only when a [testifying] defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge." (People v. Cortez (2016) 63 Cal.4th 101, 117 (Cortez).) It is not sufficient that the defendant's testimony "conflicts with other evidence or may be characterized as improbable, incredible, unbelievable, or bizarre"; such testimony is not " 'the functional equivalent of no explanation at all.' " (Ibid.)
Here, the trial court concluded there was "enough in the record" to give the instruction. We agree there was at least one set of questions during defendant's cross- examination that warranted giving the instruction. Defendant's explanation of his shooting of Charles H. was that it was an accident and the gun unexpectedly went off. On cross-examination, the prosecutor asked defendant whether his finger touched the trigger. Defense counsel objected on foundation and other grounds, and the court overruled the objection, stating, "He knows what he did or not. He can answer the question." Defendant responded, "I don't know. It just happened. I don't know if my finger—if it did. I don't know if it didn't. I don't know." The prosecutor also asked whether the gun was pointed at Charles H.'s head. Defendant replied, "I don't know. I turned it around with one hand. I don't—I don't even know how I did that. Like it just—it just happened. I don't know."
By giving these answers, defendant failed to explain key aspects of how the (purportedly accidental) shooting occurred. Defendant "could reasonably be expected" to know whether his finger touched the trigger and whether the gun was pointed at Charles H.'s head. (See Cortez, supra, 63 Cal.4th at p. 117.)
In his reply brief on appeal, defendant acknowledges his testimony on these points. He argues, however, that, since his trial occurred several years after the shooting, he "could not reasonably be expected to remember" whether his finger was on the trigger or if the gun was pointed at Charles H.'s head. That assertion is at best debatable and does not establish the court erred by giving the instruction. Since there was an evidentiary foundation for the instruction, it was for the jury to decide whether and how to apply it during deliberations, including possibly considering the passage of time in assessing what defendant knew. (See CALCRIM No. 361 [jury may consider defendant's failure to explain or deny evidence "[i]f the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew"], italics added.)
C. Dr. Himelstein's Testimony
1. Additional Background
Prior to trial, defendant moved to admit expert testimony from Dr. Sam Himelstein, a psychologist who evaluated defendant. Defendant sought to offer testimony from Dr. Himelstein on the subjects of defendant's borderline intellectual functioning and existing scientific research about adolescent brain development. Defendant argued this testimony was relevant to the jury's assessment of defendant's credibility and to whether he knew his conduct was dangerous to life, as required for a finding of implied malice to support a murder conviction. At a pretrial hearing, the court ruled that testimony about defendant's IQ and intellectual functioning was relevant to the "adolescent brain issue," but not to defendant's credibility. The court stated it would not designate Dr. Himelstein as an expert prior to voir dire at trial.
At trial, Dr. Himelstein testified he obtained a doctorate in clinical psychology in 2011. He works as a psychologist in private practice and at Kaiser, where he works with teens and adults with substance abuse issues. He founded the Center for Adolescent Studies, which provides training to people who work with teenagers. During his graduate work and in connection with developing his courses, Dr. Himelstein studied and became familiar with the scientific literature pertaining to how trauma and low IQ can affect adolescent brain development. He also worked in various settings as a psychotherapist to juveniles, families, and adults. He had conducted psychological testing between 75 and 100 times, published two books about the psychological treatment of adolescents, and published about 10 journal articles, mostly addressing adolescent issues. Dr. Himelstein had testified once but not as an expert. The defense offered him as an expert in "medical psychology" or "clinical psychology."
During the prosecutor's voir dire, Dr. Himelstein testified he is a clinical psychologist. He is not a neurologist or a neuropsychologist, which is a psychologist who specializes in how the brain influences cognitive function and behavior. Dr. Himelstein took biopsychology and criminology courses during his undergraduate studies 11 or 12 years prior to trial. He testified he reviews the current literature on brain imaging studies and is able to interpret brain imaging studies to some degree.
At the conclusion of voir dire, the court ruled that Dr. Himelstein would be "deemed a person qualified to testify in the area of clinical psychology but not as an expert." After the jury left the courtroom for a recess, defense counsel requested that the court explain why it had ruled Dr. Himelstein was not an expert. The court stated clinical psychology is a "huge field" and Dr. Himelstein did not appear to be qualified as an expert in "the area of clinical psychology to the extent that it applies to this case, to the extent that it applies to the issues that we have before us." Defense counsel asked about the possibility of offering Dr. Himelstein as an expert in a narrower field than clinical psychology, such as the "adolescent brain." The court responded that Dr. Himelstein did not appear to be an expert in adolescent brain injury or defects. The court stated, however, that Dr. Himelstein could testify and that counsel could "question him and ask him his opinion in that area." In response, counsel did not make a proffer as to what additional testimony Dr. Himelstein would provide if designated as an expert.
As noted, Dr. Himelstein testified about his evaluation of defendant. Defendant had a borderline IQ score of 70 and was in the low average range for nonverbal reasoning. Dr. Himelstein testified the brain continues to develop through adolescence, which is understood to range roughly from age 12 to age 19. The frontal lobe of the brain develops last and is associated with abstract reasoning and executive functioning, which includes risk assessment and the ability to control impulses. Brain development may occur more slowly in people with lower IQs.
2. Analysis
Defendant argues the court erred by ruling (1) Dr. Himelstein was not qualified to testify as an expert witness, and (2) evidence of defendant's intellectual functioning was not relevant to his credibility.
" 'Expert opinion testimony is admissible only if it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert." (Evid. Code, § 720, subd. (a).) " 'The competency of an expert is relative to the topic and fields of knowledge about which the person is asked to make a statement.' " [Citation.] We review the trial court's ruling on the admissibility of expert testimony for abuse of discretion.' " (People v. DeHoyos (2013) 57 Cal.4th 79, 128.)
Here, we need not determine whether the trial court abused its discretion, because we conclude any error in limiting the nature and scope of Dr. Himelstein's testimony was harmless. We initially reject defendant's contention that the standard of prejudice for federal constitutional error applies here. " '[T]he routine application of provisions of the state Evidence Code law does not implicate a criminal defendant's constitutional rights.' [Citations.] This is so because 'only evidentiary error amounting to a complete preclusion of a defense violates a defendant's federal constitutional right to present a defense.' " (People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 756.) The limitations placed on Dr. Himelstein's testimony by the trial court did not amount to a complete preclusion of a defense. Accordingly, any error "was one of state evidentiary law only [citation], and the proper standard of review is whether it is reasonably probable that defendant would have obtained a more favorable result in the absence of the error." (Ibid.)
Defendant has not shown a reasonable probability that designation of Dr. Himelstein as an expert would have changed the outcome of the trial. As noted, despite its ruling on his expert status, the trial court permitted Dr. Himelstein to testify both about his examination of defendant and about adolescent brain development generally, including that such development continues through the teen years and the frontal lobe (which governs risk assessment and impulse control) develops last. It is true, as defendant points out, that the prosecutor sought to downplay some parts of Dr. Himelstein's testimony in closing argument by pointing out he had not been designated an expert. But we remain unpersuaded that Dr. Himelstein's lack of an expert designation prejudiced defendant.
Defendant's primary argument on this point is that, because Dr. Himelstein was not an expert, defendant could not establish, through hypothetical and other questions, that a teen with borderline IQ or intellectual functioning might not subjectively appreciate the risk involved in "pulling out a gun and putting it to someone's head, even if he believed it was inoperable." But because the substantive information about defendant's intellectual functioning was presented to the jury through Dr. Himelstein's testimony, and because the jury could use its own common sense to apply this information to the facts of the case, we are not persuaded there is a reasonable probability that hypothetical questions based on the facts would have changed the outcome of the trial. Defendant also contends the trial court, on hearsay grounds, refused to allow Dr. Himelstein to testify about scientific research in the field of adolescent brain development, but the portion of the record he cites on this point includes no such ruling. In light of defendant's limited explanation, in this direct appeal, as to the additional testimony he would have elicited from Dr. Himelstein had the court ruled he could testify as an expert, we cannot conclude the court's decision on this point was prejudicial error.
Defendant also has not shown a reasonable probability that he would have obtained a more favorable outcome if he had been permitted to argue that Dr. Himelstein's testimony about defendant's IQ and verbal ability was relevant to defendant's credibility. The court instructed the jury with CALCRIM No. 226 on its duty to evaluate witness credibility, including explaining that the jury should consider such matters as whether the witness understood questions and whether the witness's testimony was reasonable considering all the other evidence in the case. The court also instructed the jury not to "automatically reject testimony just because of inconsistencies or conflicts." In light of these instructions, it is not reasonably probable that defendant's ability to highlight Dr. Himelstein's testimony as bearing on defendant's credibility would have produced a different outcome.
Finally, we reject defendant's argument that multiple trial court errors had a cumulative impact that was prejudicial. In our view, for the reasons discussed above, neither of the rulings we have assumed to be erroneous—the trial court's decision not to instruct on a second predicate crime supporting the involuntary manslaughter theory (a theory the court explained to the jury), and the court's limitations on Dr. Himelstein's testimony (while permitting him to present significant substantive information about his evaluation of defendant and about adolescent brain development generally)—was likely to have had any significant impact. It is not reasonably probable that, in the absence of both of the assumed errors, defendant would have obtained a more favorable outcome.
III. DISPOSITION
The judgment is affirmed.
/s/_________
STREETER, J. We concur: /s/_________
POLLAK, P. J. /s/_________
TUCHER, J.