IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE A113295

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1 Filed 12/14/07 P. v. Deason CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. DAVID DEASON, Defendant and Appellant. A (Lake County Super. Ct. No. CR ) Defendant David Deason appeals from a judgment convicting him of first-degree murder and sentencing him to 50 years to life in state prison. Defendant contends that: (1) there is insufficient evidence to establish that the murder was committed with premeditation and deliberation; (2) the trial court erred in excluding evidence of his intoxication and in refusing to instruct the jury that it could consider his voluntary intoxication in determining whether the killing was deliberate and premeditated; (3) the trial court should have granted his motion for a mistrial because a police officer inadvertently offered testimony in violation of an in limine ruling. We agree with defendant s second contention that the trial court erred in excluding expert testimony about his level of intoxication and in refusing to instruct the jury that it could consider his voluntary intoxication in determining whether the killing was deliberate and premeditated. Accordingly, we reverse on that basis alone and need not reach defendant s other two contentions. 1

2 FACTUAL AND PROCEDURAL HISTORY Defendant was charged by information with a single count of murder. (Pen. Code, ) The information also alleged that defendant personally and intentionally discharged a firearm ( , subds. (c), (d)) and personally used a firearm in the commission of the crime ( , subd. (a)(1), , subd. (b)). Evidence of the following facts was received at defendant s jury trial: Defendant and the victim, Marie Parlet, lived together in a two-bedroom mobile home on property owned by Patricia and David Farmin. Marie s 2 son and his girlfriend also lived in the mobile home. On the morning of December 6, 2004, Marie picked up her daughter Charlene from a drug rehabilitation program and returned with her to the mobile home. At about mid-day, Patricia came to the mobile home to talk to Marie about plumbing repairs needed at Marie s mobile home. Charlene and defendant were in the living room and, Charlene testified, she could clearly hear the conversation occurring between Patricia and Marie. Patricia s handyman was also present and overheard the conversation. Patricia told Marie that she wanted her handyman to make the repairs, rather than defendant s friend, who she called a drunk and a thief. She also told Marie that she did not want defendant living in the mobile home. Patricia said that she had rented the place to Marie... and... [s]he didn t want the defendant... to stay there. Marie responded, I know. It s about to just get down to just me living here pretty soon. Defendant was upset at the conversation and left the mobile home shortly after Patricia. He returned about three hours later, before dark. He appeared a little on the angry side and started in with Marie about the plumbing and about Charlene spending the night at the mobile home. Marie explained that the plumbing work was completed and that Charlene would be staying with a friend. Defendant initially refused to let Marie 1 All statutory references are to the Penal Code. 2 Because there are two pairs of involved individuals with the same surname, we refer to these persons by their given names. 2

3 borrow his truck to drive Charlene to her friend s house. However, he relented and allowed Marie to use his truck because he was concerned that otherwise she would drive Charlene in an unregistered vehicle. Charlene and Marie left shortly before 7:00 p.m. Charlene testified that Marie left to return from her friend s home to the mobile home about 45 minutes to an hour later. Sometime after 7:00 p.m., defendant entered the Farmin s kitchen and told David that he had just shot and killed Marie. David called 911 at 7:39 p.m. Defendant told the 911 dispatcher, I shot my girlfriend. When the dispatcher asked him why, defendant answered, How the hell do I know. You, you, you a psychologist? When the officers arrived at the mobile home they found Marie s body in the carport resting on the bumper of a car. Marie had been shot twice, once in the front and once in the back. Based on Marie s wounds the forensic pathologist opined that she was shot first in the back and then in the chest. Marie also had a grazing wound to the front of her left forearm, which was caused by the bullet that entered her chest. On direct, the pathologist stated that it was conceivable that [Marie] could have had... maybe even a minute of voluntary activity after being shot in the back, and that during any such period she could have turned and put her hand up before being shot in the chest. On cross, the pathologist acknowledged that if the two gunshots were fired in rapid succession, he would not be able to differentiate whether Marie was shot first in the back or in the front. Defendant was arrested inside the mobile home. The gun was found on the kitchen counter. Defendant told an officer, I did it. I shot her twice. I dearly love that woman. She s been down about forty-five minutes to an hour. Defendant said that he was sorry for what he did and also said, I know what I did.... I had a reason.... I don t know what her children are going to think when they hear I shot their mother. The jury convicted defendant of first degree murder and found the firearm enhancements true. Defendant was sentenced to 50 years to life in state prison. Defendant filed a timely notice of appeal. 3

4 DISCUSSION Defendant contends that the trial court erred by refusing his request to present, through the testimony of a toxicologist, evidence regarding his intoxication, including the fact that he had a blood alcohol content (BAC) level of 0.27 shortly after his arrest on the night of the shooting. He also avers the trial court erred by refusing to instruct the jury pursuant to CALCRIM No. 625 that it could consider the effect of his voluntary intoxication on whether he acted with deliberation and premeditation. We agree with defendant on both points. A. Background Pretrial the court ruled that evidence of defendant s 0.27 BAC could be admitted only via expert testimony that such a BAC could affect defendant s ability to form a specific intent and specific reasons why and so on.... Defense counsel told the court that there were three toxicologists on his witness list, but his intent would be that, if I used one, I would only use one and not all three. During trial, a number of witnesses touched on the subject of defendant s drinking habits, whether he was drinking on the day of the shooting, and his apparent impairment or lack of it. At one point, defense counsel objected that the prosecutor was trying to keep out evidence of defendant s intoxication but admit evidence suggesting defendant was an alcoholic. The prosecutor explained: I m just trying to let the jury know what the situation was here, whether [defendant] was drinking that morning,... what his drinking pattern was that day and, I think, his tolerance to alcohol. I m not trying to establish that he is an alcoholic. I m just trying to establish... his drinking pattern that day and his tolerance level that day. At the conclusion of the prosecution s case defense counsel asked to present testimony by his toxicology expert relating to defendant s BAC level 90 minutes after the 911 call: Your honor made a ruling that we weren t to submit any evidence of alcohol consumption by my client. At this point, I am asking the Court to allow me to call a toxicologist to testify that based on his BAC of, what was it point two seven, that he had consumed a certain number of drinks in order to get to that level. That number would be, 4

5 I think either 13 or 14. That s relevant to his intoxication... to his state of mind that night... and to his ability to premeditate and deliberate this murder. Defense counsel asserted that substantial evidence had been admitted regarding defendant s alcohol consumption on the day of the incident. Both Charlene and Patricia testified that they saw defendant drinking earlier in the day and the arresting officer testified that based on defendant s slurred speech, he thought defendant had been drinking. The jury also heard evidence brought out by the prosecutor that around the time of the incident defendant was not stumbling. He was able to walk on his own accord. He was able to drive on his own accord. He didn t trip. He didn t fall. He didn t stagger. Defense counsel argued that, [E]ssentially the People have been allowed to prove that he wasn t intoxicated or under the influence of any alcohol that day. I believe that testimony by toxicologists that Mr. Deason had to have consumed at least 13 or 14 drinks that date would rebut that evidence. The court excluded the proffered evidence, explaining that if the toxicologist were to testify as to how many drinks it would take to get him to a two seven, in order to make that relevant, the toxicologist is also going to have to testify as to what the state of his sobriety would be based on how long a period of time [in] which it was consumed, his tolerance to be able to function at that level, a lot of other factors.... [ ] So, unless the toxicologist can testify at that level an individual would be so impaired in their ability to think that they wouldn t be able to connect thoughts together to function in any meaningful way, then you ve got, I think, the basis of what you need to bring in that evidence but not until. The defense rested without calling any witnesses. After close of evidence, defense counsel requested that the trial court give CALCRIM No. 625 so that the jury could consider defendant s intoxication in determining whether he acted with deliberation and premeditation. CALCRIM No. 625 provides in relevant part, 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 deliberation and premeditation. [ ] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any 5

6 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. The trial court rejected defendant s request that the jury be instructed on the effect of voluntary intoxication under CALCRIM No The trial court ruled that the Court has heard no evidence in regard to whether or not [defendant s intoxication] had any affect on his ability to think, whether or not he had the ability to form the specific intent and the other elements of the offense.... [ ]... [G]iven the fact that there is no evidence whatsoever about his ability or inability to form any intent required, I don t feel it s appropriate to give that jury instruction. B. Analysis (i) A trial court s exclusion of evidence under Evidence Code section 352 will not be reversed on appeal absent a clear abuse of discretion. (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.) Section 352 permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption. That section requires that the danger of these evils substantially outweigh the probative value of the evidence. This balance is particularly delicate and critical where what is at stake is a criminal defendant s liberty. (Citation.) Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and his right to present all relevant evidence of significant probative value to his defense. (Citations.) Of course, the proffered evidence must have more than slight relevancy to the issues presented. (Citation.) We further recognize that a defendant s right to present his defense theory is a fundamental right and that all of his pertinent evidence should be considered by the trier of fact. (Citations.) (Id. at p. 599.) In this case, we can conceive of no evidence more relevant than the fact that defendant was found to have a BAC of 0.27 a short time after his arrest. Defense counsel s proffer was that the toxicologist would testify that defendant would have had to 6

7 consume 13 or 14 drinks to attain such a BAC. Defense counsel pointed out that throughout the trial the prosecution had introduced testimony in an attempt to prove defendant was not intoxicated or under the influence of alcohol on the day of the shooting. Indeed, as noted above, the prosecutor stated openly that he was trying to show the jury [defendant s] drinking pattern that day and his tolerance level that day. Given the state of the evidence at the time defense counsel asked to present the toxicologist s testimony, we conclude the trial court abused its discretion by refusing such testimony. In doing so, the trial court prevented the jury from hearing evidence that tended to counter prosecution evidence of defendant s lack of impairment and was highly probative to the issue of premeditation and deliberation. That is not to say the evidence of defendant s 0.27 BAC was somehow pivotal or determinative of that issue because, as the trial court noted, many variables are involved, including over how long a period defendant consumed the alcohol and his tolerance to be able to function at that level. Such concerns go to the weight of the evidence rather than its admissibility, however, and since the trial courts discretion should favor the defendant in cases of doubt (citation), the trial court properly should have allowed defense counsel to present the toxicologist. (People v. Burrell-Hart, supra, 192 Cal.App.3d at p. 600.) Further, the trial court compounded its error by refusing defense counsel s request for a voluntary intoxication instruction pursuant to CALCRIM No In general, evidence of voluntary intoxication is relevant to whether defendant formed a specific intent when that intent is an element of a crime charged against him. (People v. Mendoza (1998) 18 Cal.4th 1114; 1124; 22, subd. (b) [ Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought ].) Although the trial court is under no sua sponte duty to instruct on the effect of voluntary intoxication on the mental states required for homicide (People v. Saille (1991) 54 Cal. 3d 1103, ), such an instruction when requested is akin to a pinpoint instruction, which must be given when there is sufficient evidence supporting the theory. (People v. Saille, supra, 54 Cal. 3d at 7

8 p. 1120; People v. Williams (1997) 16 Cal.4th 635, 677 [defendant is entitled to a voluntary intoxication instruction when there is substantial evidence of the defendant s voluntary intoxication and the intoxication affected the defendant s actual formation of specific intent. ].) Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. (People v. Cunningham (2001) 25 Cal.4th 926, 1008 [internal quotation marks and citations omitted].) Moreover, in determining whether substantial evidence supports giving a requested instruction, the court may not consider the credibility of the evidence and any doubts about the sufficiency of the supporting evidence for an instruction must be resolved in favor of the defendant. (People v. Tufunga (1999) 21 Cal.4th 935, 944.) In view of the evidence introduced at trial concerning defendant s drinking and impairment, or lack of it, on the day of the shooting; the prosecution s stated aim of showing the jury evidence of defendant s tolerance level for alcohol, and the trial court s error in excluding the toxicologist s testimony, we conclude that defendant was entitled to an instruction on voluntary intoxication. (ii) Nor can we say that the trial court s errors in excluding evidence of defendant s BAC and refusing a voluntary intoxication instruction were harmless. A judgment may be reversed on appeal for the improper exclusion of evidence if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) 3 Our review of the record convinces us that the Watson standard is met in the instant case with respect to the issue of the premeditation or deliberation required for first-degree murder. In the first place, the prosecution presented relatively weak evidence of premeditation. (People v. Anderson (1968) 70 Cal.2d 15, [ evidence... sufficient 3 Because we conclude the trial court s errors were prejudicial under California s Watson standard, we need not decide whether the standard for federal constitutional error under Chapman et al. v. California (1967) 386 U.S. 18, applies here as defendant asserts. 8

9 to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing what may be characterized as planning activity; (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... (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 ].) There was at best scant evidence of planning activity the prosecutor invited the jury to infer defendant ambushed the victim in the carport when she returned home. (Cf. People v. Elliot (2005) 37 Cal.4th 453, [strong evidence of premeditation where defendant surveyed bar in advance for place to kill and armed himself in advance with a knife].) Nor was evidence of motive particularly strong either the prosecutor suggested defendant was aggrieved because he was told to move out, but the evidence is ambivalent about whether Marie actually told defendant she (as opposed to the property owner) wanted him to move out. And evidence that defendant was upset over the progress of plumbing repairs hardly points to premeditated murder. Moreover, although the manner of killing (two gunshots to Marie s torso from a distance of over 18 inches) certainly evidences the intent to kill, it leaves open to interpretation whether or not such intent was formed after premeditation and deliberation. (Cf. People v. Horning (2004) 34 Cal.4th 871, [sufficient evidence of premeditation and deliberation where defendant brought murder weapon with him and bound victim at scene, thus showing planning activity, while manner of killing single bullet from close range into brain of bound and blindfolded victim showed calculated design to ensure death rather than unconsidered explosion of violence]; cf. also People v. Elliot, supra, 37 Cal.4th at pp [defendant inflicted 80 stab and slash wounds on victim and shot her in the head four times at close range].) In the face of the rather weak evidence of premeditation, evidence of voluntary intoxication assumes a greater importance to the defense. And of all the individual pieces of evidence leading to a reasonable inference that the defendant was intoxicated at the 9

10 time of the commission of the crime, none rises to the level of that piece of evidence which was never brought to the attention of the jury the fact that the defendant, approximately 90 minutes after his arrest, had a BAC level of 0.27 percent. 4 In terms of its potential impact upon the jury, as the trier of fact, it seems nearly impossible to overstate the relevance, and the importance, of this evidence. While it is entirely the province of the jury to assign weight to each piece of evidence, it is hard to imagine any reasonable jury which would not assign significant weight to evidence indicating this massive level of intoxication on the part of the defendant within an hour and a half of the shooting especially if they had been instructed, as defendant requested, that they could consider such evidence in deciding whether the defendant acted with an intent to kill, or acted with deliberation and premeditation. But they were never informed of the existence of this evidence, and they were never instructed as to the manner in which they could consider such evidence of intoxication as they did possess in evaluating what was the central issue in the case before them whether the defendant was guilty of murder in the first degree, or only of a lesser level of homicide. If there was any remaining doubt on the matter of prejudice, what tips the scales in favor of a finding of prejudice is the prosecutor s argument to the jury on the issue of intoxication. (People v. Minifie (1996) 13 Cal.4th 1055, 1071 [holding that even though [a]t its best, the [defendant s] claim of self-defense was not compelling, the prosecutor s closing argument tips the scale in favor of finding prejudice because the prosecutor emphasized absence of corroboration for defendant s claim of fear in arguing that the jury should disregard defendant s testimony].) Here, the prosecutor exploited the state of the evidence and the trial court s favorable rulings to the People s full advantage. In his rebuttal closing argument, the prosecutor told the jury: [Defense counsel] wants you to think that because the defendant may have had something to drink that day, that 4 A BAC of 0.27 is over three times the level at which the law of the State of California presumes a person to be legally impaired for the purpose of driving an automobile. (See Vehicle Code, ) 10

11 this is that this somehow gives him a pass. Ladies and gentlemen, the law does not allow a person to drink to the point where they stew up enough courage to go out and shoot and murder somebody and then claim that I can t be held responsible because, oh, gee, I ve been drinking. (9 RT 781). The prosecutor further argued that there was scant evidence of drinking and no evidence tying it to appellant s mental state. (9 RT ). Finally, noting the lack of expert testimony, the prosecutor specifically argued there was no evidence regarding appellant s tolerance for alcohol. (9 RT ). If there was any further need for a demonstration of the importance of the excluded evidence (of both the defendant s BAC and the expert testimony explaining its significance), and the need for the correct instruction on the law regarding the role of intoxication in the jury s consideration of culpability in a homicide case, the prosecutor s final argument certainly provides it. The missing evidence, and missing instruction, literally stripped the appellant of a potential defense to the charge of first-degree murder. The prosecutor knew it, and hammered the point home to the jury. Thus, we conclude that evidence of defendant s BAC, coupled with an instruction on voluntary intoxication, would have provided the defense with a powerful counterweight to the prosecutor s argument. Therefore, in our view, the trial court s error in excluding evidence of defendant s BAC and refusing his request for an instruction on voluntary intoxication raises a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson, supra 46 Cal.2d at p. 836.) 11

12 The judgment is reversed. DISPOSITION Horner, J.* We concur: Pollak, Acting P. J. Siggins, J. * Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 12