Opinion
F081829
11-09-2022
THE PEOPLE, Plaintiff and Respondent, v. DARREN JACK MERENDA, Defendant and Appellant.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, No. 1408049 Joseph R. Distaso, Judge.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
"I think we got in a fight and he had a knife. [¶] And I think he cut me, and after that, I don't remember." These are the words Darren Merenda uttered hours after he stabbed a man 11 times and then tossed the knife over a fence. Merenda suffered negligible injuries while the man succumbed to his wounds and died. No other knife was found.
Merenda was charged with and convicted by jury of first degree murder. He raises several claims on appeal to challenge the conviction. We affirm.
BACKGROUND
Charges
The Stanislaus County District Attorney charged Merenda with committing one crime: murder (Pen. Code, § 187, subd. (a)). It was further alleged the murder was committed willfully and with premeditation and deliberation. (Pen. Code, § 189, subd. (a).)
Trial Evidence
Merenda was in an "intimate" relationship with a woman, B. The relationship ended. B. began a new relationship with another man-the victim in this case. One night, B. and the victim were out on the town drinking alcohol; Merenda happened to be at the same bar. After drinking, B. and the victim returned to B.'s residence and Merenda to his; B. and Merenda lived in the same apartment complex.
A little while later, Merenda texted B. The victim, who was with B., took exception to the late message and responded to it on B.'s phone. The response identified the victim and stated, "[S]hut the fuck up dum as s [sic]." Merenda replied, "[I']m not so dumb." The victim then called Merenda, inviting him to "talk about it outside," and Merenda angrily accepted the challenge.
B. testified she could hear Merenda on the phone and he "was angry."
The victim and B. went outside to wait for Merenda. Merenda arrived a few minutes later. The men began talking while B. stayed behind. At some point, the victim asked Merenda to go "towards the alley by the dumpster . . .." While the victim turned to the alley, Merenda unsheathed a 16-inch-long knife and stabbed the victim 11 times, including numerous times in the heart region.
The victim's heart was severed "into two pieces."
Merenda suffered minor injuries, discarded the knife over a fence, and tossed the sheath into a flowerbed. He returned to his apartment where he reportedly tried to "commit suicide." He was interviewed by police about the incident shortly thereafter.
There was evidence consistent with Merenda's claim a "gun jammed" when he tried to shoot himself.
During the interview, Merenda repeatedly denied remembering the incident. He claimed he remembered drinking alcohol, the messages and the call, going outside, being "scared," and then getting hit in the head and attacked by the victim. He believed the victim had a knife in his hands. The next thing he recalled was waking up inside his apartment. Merenda repeated this numerous times. Eventually, he admitted he brought a knife with him "to protect [him]self," but also said the victim was not "threatening . _."
An expert witness testified Merenda's blood alcohol content was approximately .24 during the incident. That level of intoxication is consistent with "emotional instability," "[d]ecreased inhibitions," "[l]oss of critical judgment," "[i]mpairment of memory and comprehension," "[d]isorientation," "mental confusion," and "[e]xaggerated emotional states . . .." But ultimately "it varies from person to person." A second expert confirmed these conclusions.
Merenda's blood was drawn a few hours after the incident. Blood alcohol content was not described in any particular manner other than in reference to "the legal limit for driving [at] .08 ...." (See, e.g., Veh. Code, § 23152.)
Verdict and Sentence
Merenda was convicted as charged. He was sentenced to serve 25 years to life in prison.
DISCUSSION
This appeal presents five issues. One, is the evidence sufficient to prove first degree murder? Two, did the court err in denying certain jury instructions? Three, did the court err in denying a mistrial motion based on inadmissible evidence presented to the jury? Four, did the court err in admitting into evidence a statement Merenda would kill if involved in a fight? Five, did the court err by permitting a hypothetical question relating to Merenda's tolerance for alcohol? We find no error and affirm the judgment.
I. The Evidence Sufficiently Proved First Degree Murder
Merenda claims the evidence "does not meet the criteria for premeditation and deliberation. Rather," he claims, "this was the rash, impulsive, and senseless act of a severely intoxicated man." The People argue Merenda "is mistaken." We agree with the People.
"Upon a challenge to the sufficiency of evidence for a jury finding, we
" '"' "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. Rivera (2019) 7 Cal.5th 306, 323.) In general, evidence" 'sufficient to sustain a finding of premeditation and deliberation falls into three basic categories': (1) facts about planning activity 'prior to the actual killing which show[s] that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing'; (2) 'facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim'; and (3) 'facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design." '" (Id. at p. 324.) These categories" 'are descriptive and neither normative nor exhaustive .. ..'" (Ibid.)
The record in this case contains evidence of each category. Most obvious is the fact Merenda armed himself prior to the altercation. (People v. Steele (2002) 27 Cal.4th 1230, 1250 ["defendant carried the fatal knife into the victim's home in his pocket, which makes it 'reasonable to infer that he considered the possibility of homicide from the outset.' "].) Merenda, of course, claimed he armed himself for protection. But it is for the jury, not the appellate court, to resolve credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) Indeed, one might question why Merenda engaged in the altercation if he was afraid-he could have just stayed in his home. The jury simply did not credit Merenda's explanation.
The interview with Merenda covered this subject. He explained he went outside because the victim asked him "and didn't sound like he was ... threatening _." This explanation is notably inconsistent with fear.
Second, the jury could reasonably infer a motive from the facts. Jealousy-a classic motive-was readily apparent in this case.
The manner of killing, too, suggested premeditation. Merenda stabbed the victim with enough force to sever his heart. The wounds were concentrated in the victim's chest. Merenda suffered nearly no injuries, suggesting the attack was one-sided and launched from advantage.
Beyond these points, other evidence supported first degree murder. For example, Merenda concealed evidence by discarding the weapon. His credibility was questionable in claiming to remember everything before and after stabbing the victim.He attributed his memory lapse to the victim "hitting [him] really hard." He also claimed the victim had a knife. These statements were inconsistent with the evidence. No second knife was found nor did Merenda suffer any significant head injury.
Merenda argues he "took no steps to hide the weapon" "contrary to what is generally seen where a killing was considered in advance." This argument belies the record.
Again, we do not resolve credibility on appeal. Instead, we simply highlight the evidence from which the jury could reasonably infer Merenda was not credible.
Finally, Merenda claims his conduct "after the killing" negates premeditation. As he put it, he questioned his actions, "ran to his apartment, where he tried to shoot himself," and was "frightened, panicked, and barely coherent." We do not believe regret and premeditation are mutually exclusive. In fact, we might well expect a person to exhibit regret and remorse after committing a premeditated murder. For all these reasons we find the evidence sufficiently proved first degree murder.
B. testified Merenda, after stabbing the victim, "spun around in circles and said, 'What did I do? What did I do?' "
II. The Court Did Not Err In Denying a Pinpoint Jury Instruction
The trial court denied Merenda's requested pinpoint jury instruction. Merenda now claims the denial was error. The People dispute both error and prejudice. We find no error.
A. Additional Background
During the trial, Merenda filed a request for a jury instruction based on "the defendant's lack of furtiveness [and] the mental state issues posed by the defendant's excessive alcohol intake . . .." The proposed instruction read, in relevant part:
"In determining whether in regard to premeditation and deliberation reasonable doubt exists, as that term has been previously defined, you may consider any of the following evidence:
1. The defendant's prior consumption of alcoholic beverage, and degree of intoxication;
2. The defendant's statement to [his roommate] just before the incident . . .;
3. The presence of the defendant at his apartment immediately following the incident . . .;
4. The defendant's statements ... following the incident . . .;
5. Any other evidence tending to prove reasonable doubt."
According to Merenda, prior to confronting the victim, he told his roommate to "watch [his] back." The roommate testified and somewhat corroborated such a statement. Highlighting the statement in a jury instruction is unnecessarily argumentative.
The court ruled on the request by stating, "[I] find that any pinpoint instruction on evidence as proposed in this case by the defense in the filed instruction is argumentative. So I'm not going to give a pinpoint instruction. I'm just going to give the standard instructions. Counsel can argue all the facts as they see fit."
Merenda's counsel responded to the ruling by expressing a willingness to work with the court to craft a "non-argumentative" instruction, and reminded the court it was "required to do so." The court replied, "I do believe the current jury instructions cover the defense theories that we have in this particular case, such as voluntary intoxication and imperfect self-defense and self-defense. So I believe any instruction that specifically points out evidence upon which the jury to consider is me commenting on the evidence. And I'm not going to do that." No pinpoint instruction was given.
B. Analysis
"[A] criminal defendant is entitled to pinpoint instructions that relate particular facts to an element of the charged offense and highlight or explain a theory of the defense if the instructions are supported by substantial evidence." (People v. Nelson (2016) 1 Cal.5th 513, 542.) "[A] trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation]." (People v. Bolden (2002) 29 Cal.4th 515, 558.) An instruction is argumentative if it is"' "of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence."' "
(People v. Homick (2012) 55 Cal.4th 816, 890.) We review claims of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)
Here, the proposed instruction was argumentative. Specifically, it invited the jury to infer Merenda was too intoxicated to form a specific mental state. It also highlighted the fact he did not flee after the homicide but ignores the fact he attempted to hide the knife and sheath. Viewed properly, the instruction was not based on the evidence.
As for whether the trial court was required to "work with" Merenda to craft an appropriate instruction, we do not believe there is such a requirement. Merenda's argument on this point is based primarily on People v. Wright (1988) 45 Cal.3d 1126 (Wright). There, the Supreme Court held it was error to refuse an instruction highlighting factors relevant to eyewitness identification. (Id. at p. 1144.) The Supreme Court held "such an instruction should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence." (Ibid.)
In a later case, the Supreme Court reiterated "[a] criminal defendant 'is entitled to an instruction that focuses the jury's attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence.'" (People v. Fudge (1994) 7 Cal.4th 1075, 1110 (Fudge), emphasis added).) There, the Supreme Court stated, "To the extent that the proposed [identification] instruction was argumentative, the trial court should have tailored the instruction to conform to the requirements of Wright, supra, 45 Cal.3d 1126, rather than deny the instruction outright." (Fudge, supra, at p. 1110.)
In our view, these cases-Wright and Fudge-compelled trial courts to instruct on specific points related to eyewitness identification, which meant crafting a nonargumentative instruction. Now, of course, standard instructions like CALCRIM No. 315 cover the subject. But these cases do not impose upon trial courts a general duty to aid defendants in developing pinpoint instructions. Certainly they did not abrogate the prohibition against argumentative instructions. (Wright, supra, 45 Cal.3d at pp. 11361137.) Quite the opposite: the Supreme Court reiterated that argumentative instructions are impermissible and any language suggesting an unfettered" 'right to an instruction that directs attention to evidence [related to] reasonable doubt'" "is taken out of context." (Ibid.)
As noted in Merenda's briefing, the proposed instruction at issue here "was patterned after the instruction . . . in People v. Sears (1970) 2 Cal.3d 180 . . .." In Wright, supra, the Supreme Court reminded "the [Sears] instruction was not intended to serve as a model" and was" 'defective in form in some respects . . ..'" (Wright, supra, 45 Cal.3d at p. 1136.)
Finally, the actual jury instructions given in the case covered each topic in the proposed instruction. In other words, the proposed instruction was duplicative. For all these reasons, we find no error in the court's ruling.
See CALCRIM Nos. 220, 223, 224, 225, 318, 358, 370, and 625.
III. The Mistrial Motion Was Properly Denied
Merenda argues the court "abused its discretion when it denied the defense motion for a mistrial" based on the "introduction of" inadmissible evidence. The People contend it "was no abuse to deny [the] mistrial motion." We agree with the People.
A. Additional Background
Prior to trial, Merenda moved to exclude "[a]ny references to knives, swords and rifles which had nothing to do with the charges _." The court granted the motion.
During the trial, the prosecutor asked a witness, "Anything else that you - in regard to photographs, anything in the defendant's apartment that you noticed that made you uncomfortable?" The witness answered, "The time that he showed me his knife collection, sword collection." The prosecutor objected to the answer, the parties conferred with the judge outside the jury's presence, and the judge then, again in the jury's presence, struck the "witness's answer" and "admonish[ed] the jury to disregard that answer in its entirety."
The jury subsequently left the courtroom and Merenda moved for a mistrial. Essentially, he argued he had "been prejudiced" and "[y]ou can't unring the bell." The judge believed jurors would follow "the curative instruction" because "[i]t looked ... like [jurors] were striking that testimony from their notes." The motion was formally denied and, when the jury reentered the courtroom, the court "reiterate[d] the same admonition" to disregard the stricken testimony.
B. Analysis
"' "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]" [Citation.]
A motion for a mistrial should be granted when"' "a [defendant's] chances of receiving a fair trial have been irreparably damaged." '" '" (People v. Silveria and Travis (2020) 10 Cal.5th 195, 298.) A ruling denying a mistrial motion is reviewed for abuse of discretion. (People v. Schultz (2020) 10 Cal.5th 623, 673 (Schultz).) Merenda bears the burden to show the trial court abused its discretion. (People v. Maury (2003) 30 Cal.4th 342, 437.)
The burden is not satisfied in this case. There was an immediate objection to the witness's nonresponsive answer. The court sustained the objection, struck the testimony, and twice admonished the jury to disregard the testimony. There is no reason to believe the jury failed to follow the admonition. (See Schultz, supra, 10 Cal.5th at p. 673 ["We presume that a jury follows the court's admonishments."].) Indeed, the court noted it appeared the jury actively followed the instruction because jurors appeared to "strik[e] that testimony from their notes." "[T]he record [does not] disclose any reason for this court to cast aside the presumption that the jurors followed the court's repeated admonishments." (Id. at p. 674.)
"Because there was no misconduct on the part of the prosecutor and the reference to [the weapon collection] was brief and isolated, the trial court properly denied the motion for mistrial." (People v. Valdez (2004) 32 Cal.4th 73, 128; accord People v. Collins (2010) 49 Cal.4th 175, 198-199.) Merenda has failed to prove an abuse of discretion.
" '[A]lthough it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct.'" (People v. Fuiava (2012) 53 Cal.4th 622, 679.) Here, the prosecutor asked a clear question about photographs. The witness responded by referencing Merenda's knife collection-entirely unrelated to photographs. The prosecutor immediately objected. There is no reason to believe the prosecutor intentionally elicited inadmissible testimony. Merenda does not claim otherwise.
IV. Merenda's Prior Statement About Fighting and Killing was Properly Admitted
Next, Merenda contends the trial court improperly admitted evidence Merenda previously stated he would kill someone in a fight. The People assert "[t]he statement was tremendously relevant and properly admitted." We agree the statement was properly admitted.
A. Additional Background
Both parties, prior to trial, sought a ruling on the statement's admissibility. The People believed the statement was simply admissible under Evidence Code section 1220. Merenda sought an Evidence Code section 402 hearing to litigate the statement's admissibility. Later in court, the prosecutor argued the evidence showed "premeditation" and
Evidence Code section 1220 states "[e]vidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity." The statute "applies to all statements of the party against whom they are offered." (People v. Rodriguez (2014) 58 Cal.4th 587, 637.)
"malice." Merenda objected the evidence was vague and lacked "foundation . •." The court ultimately ruled:
"I think [the statement] goes to intent. . • [T]his testimony that I read in the transcript, that he was showing her some knives and said if he ever gets in a fight, he was going to engage in a stabbing or something, I think that clearly is relevant as to this intent. I mean, I'll allow that.
[¶] ••• [¶]
"[T]hat statement is permitted, • that if he ever gets in a fight he's losing, he's going to stab someone, basically. I'll allow that."
The court found the statement did not violate Evidence Code section 352's prohibition of evidence which is more prejudicial than probative.
B. Analysis
"A trial court's ruling on the admission or exclusion of evidence is reviewed for abuse of discretion." (People v. DeHoyos (2013) 57 Cal.4th 79, 131.) "A court abuses its discretion only when '" 'the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'" '" (In re Caden C. (2021) 11 Cal.5th 614, 641.)
We find the trial court did not abuse its discretion in admitting the evidence. The court correctly ruled the evidence was relevant and it was admissible pursuant to Evidence Code section 1220. Merenda's remark evidenced a preexisting intent, in a specific situation, to resort to using a knife. When that situation presented itself, he followed through by stabbing and killing the victim in this case. The jury could properly consider the prior statement in assessing Merenda's mental state during the crime. (Cf. People v. Smith (2015) 61 Cal.4th 18, 47-48 [evidence admitted to prove charged crime pursuant to Evidence Code section 1220 does not implicate character evidence].)
Merenda complains "the court's failure to hold a 402 hearing turned the purported statement into something out of a game of 'telephone.'" The court explicitly considered the statement in its context, including temporal, and there is no requirement of "a separate or formal finding" on reliability. (Evid. Code, § 402, subd. (c); see People v. Cortez (2016) 63 Cal.4th 101, 125 [ambiguity is no bar to admissibility under Evidence Code section 1220].)
As the court ruled, the statement was relevant to intent. Intent, in turn, was relevant to several issues, for example, intent to kill, premeditation, imperfect selfdefense, self-defense, etc.
Finally, Merenda claims the prosecutor improperly broached this subject with his expert witness. We disagree for two reasons. One, we have already found the statement admissible. More importantly, the expert actually considered the statement in arriving at an opinion. The expert's actual work is a proper subject for cross-examination. (Evid. Code, § 721, subd. (a); People v. Coffman and Marlow (2004) 34 Cal.4th 1, 85.) The trial court did not err in admitting the evidence.
The exchange went as follows: "[PROSECUTOR]: At the bottom of the page, you noted defendant's, and you have in quotations 'he is never going to lose a fight because somebody would end up dead,' quotation. You wrote that note; right? "[EXPERT]: I did. "[PROSECUTOR]: So that was something you felt was cogent from your review of the police reports and other information that you had? "[EXPERT]: It is." No further information was elicited.
V. Prior Instance of Intoxicated Driving Was Proper Subject for Hypothetical
Last, Merenda argues the court "abused its discretion when it permitted the prosecutor's improper hypothetical over defense objection." Specifically, he suggests the prosecutor's hypothetical was "irrelevant" and not" 'rooted in the case being tried ....' " The hypothetical related to Merenda driving a vehicle while intoxicated by alcohol on a previous occasion.
The People argue the hypothetical was fine and Merenda otherwise forfeited the issue. We find no error.
A. Additional Background
The expert witness, a "criminalist" employed by the Department of Justice, testified for Merenda. Merenda's counsel asked the expert to describe the "typical issues" relative to "mental state" a person would experience around a .24 blood alcohol content level. The expert explained "it varies from person to person" and there is "a level of tolerance that is developed."
The hypothetical at issue follows:
"[PROSECUTOR]: So if the person in my hypothetical were driving at somewhere around the neighborhood of a .34 [blood alcohol content]; able to ambulate, not well; answer basic questions, would that indicate that person had a fairly high tolerance level based on what you've testified to previously in your own personal experience?
"[DEFENSE COUNSEL]: Objection. Assumes facts not in evidence. And we can approach if you like.
"[PROSECUTOR]: It's an expert hypothetical.
"[DEFENSE COUNSEL]: Well, so what? It's got to be based on facts and evidence in this case. It has to have some professional relevance. And I could approach the Court and discuss it with you further, if you'd like.
"[COURT]: I'm going to allow it, subject to a motion to strike; all right? If there's no facts relevant to it, you can renew your objection.
Go ahead."
The prosecutor again asked the question, focusing on whether the facts "indicat[ed] that that individual may have a high tolerance for alcohol[.]" The expert responded, "Yes," and later stated driving a car at a .34 blood alcohol content level means "you've definitely developed tolerance." The expert subsequently clarified, "[T]olerance doesn't mean the person's able to function, literally function, other than being passed out at a higher level of blood alcohol level. That doesn't mean they're not going to experience mental states that you were talking about," i.e., "emotional instability, decreased inhibitions, [and] mental confusion . . .."
Later, a law enforcement officer testified to the facts surrounding Merenda's prior DUI incident. The parties stipulated Merenda's blood during the DUI incident tested at ".32 percent alcohol."
B. Analysis
"[A] witness testifying as an expert may be cross-examined to the same extent as any other witness and ... may be fully cross-examined as to ... the subject to which his or her expert testimony relates ...." (Evid. Code, § 721, subd. (a).)" '[A] hypothetical question must be rooted in facts shown by the evidence . . ..'" (People v. Vang (2011) 52 Cal.4th 1038, 1045.)
We see no error with the question for two reasons. First, it was rooted in the evidence-all the facts were testified to by a percipient witness or otherwise stipulated to by Merenda. (See People v. Valencia (2021) 11 Cal.5th 818, 839-840 [discussing Sixth Amendment issues].)
Second, the question was within the proper scope of cross-examination. Merenda himself asked about alcohol's effect relative to mental state. The expert, in response, discussed tolerance. It was fair for the prosecution to further explore tolerance, and to do so with a hypothetical based on real facts involving Merenda's alcohol use.
To the extent Merenda claims the question unfairly conflates the issues, we disagree. The jury was properly instructed on how to consider alcohol intoxication. The expert clearly explained driving a car while intoxicated indicates tolerance but it does not otherwise vitiate alcohol's effect on mental state. In other words, operating a vehicle is different than forming a specific mental state.
Merenda's concerns regarding conflation are unwarranted. We have no reason to believe the jury could not properly assess the alcohol-related evidence. In sum, there is no error in the prosecutor's hypothetical.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, ACTING P. J. POOCHIGIAN, J.