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Criminal Law Spring 2017

The PEOPLE, Plaintiff and Respondent, v. Harvey KOBAYASHI, Defendant and Appellant.

1

California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts.

Court of Appeal, Second District,
Division 8.

The PEOPLE, Plaintiff and Respondent,
v.
Harvey KOBAYASHI, Defendant and Appellant.

No. B157685.

(Los Angeles County Super. Ct. No. NA049139).

March 26, 2003.

 

2

Affirmed.

3

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles D. Sheldon, Judge. Affirmed.

4

Attorneys and Law Firms

5

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.

6

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Jamie L. Fuster, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

7

Opinion

8

COOPER, P.J.

9

*1 Following a jury trial, Harvey Kobayashi was convicted of the second degree murder of Sheila Ann Randle, a woman he met through a telephone dating service. He admits stabbing her to death with her eight-year-old son in the apartment, cleaning the bloody scene, and then burning her body after moving it to his family’s farm in Dinuba. Appellant proffered principally a defense of imperfect self-defense, i.e., the victim made threats to kill him and his parents after he could or would not continue making payments to her or buy her a house; instructions on heat of passion and provocation were also given. The trial court excluded testimony of appellant’s expert witness, a psychologist, and gave or failed to give instructions appellant now contests. Sentenced to 16 years to life in prison, appellant appeals the judgment of conviction.1 We shall affirm the judgment.

10

PROCEDURAL HISTORY AND STATEMENT OF FACTS

11

Appellant stabbed the victim to death with a buck knife on April 7, 2001. She was on the bed in her bedroom, where appellant had spent the previous night, in the apartment provided to her by appellant. Injuring his own left hand in the attack, appellant took the victim’s son with him to a hospital where he was treated and then dropped the boy off at the home of the boy’s grandmother, the victim’s mother.2 Appellant stopped to get boxes and cleaned up the master bedroom; he spent the night at a motel in Torrance. The next morning appellant rented storage space in Torrance for the bloody mattress and other incriminating items and paid someone to help him move the victim’s body, encased in boxes and bed linens, so that he could take it to his parents’ home and burn her remains beyond recognition. The body was identified from her dental records. Appellant’s and the victim’s blood were found in the apartment and on the items stored by appellant.

12

Contacted by the victim’s mother and friend as well as by the police when she was found to be missing, appellant denied knowing what had happened to her, gave a phony story about wanting to buy her a new mattress, and falsely declared she was alive when he went to the hospital. Officers who investigated a week after the homicide found spots of blood in the apartment and bleached areas in the carpet padding. The victim’s purse and jewelry were missing; her mother saw that the victim’s underwear was also gone. 

13

When the police arrived at the family farm on May 17, appellant in a two-hour conversation initially denied any involvement and lied about his relationship with Sheila Randle, claiming to be her mentor. After being told the detectives did not believe him and that he was under arrest, appellant asked them not to tell his mother.3

14

Within hours appellant confessed to the homicide. The tale he told the detectives at the station, essentially the same as his testimony at trial and consistent with the testimony of the victim’s best friend and documentary evidence of monies paid to the victim by appellant, attempted to explain why he killed her.4 As defense counsel noted, the issue for the jury was not “what” happened, but “why.” Appellant’s state of mind was the key to the defense, which sought a conviction of manslaughter instead of murder.5

15

*2 Appellant’s relationship with the victim was complicated. He first contacted her in about June 1999 and began to know her on the telephone as “Frankie,” a woman on a date phone line. There was a lot of talk about sex, which he liked, and he wanted to meet Frankie .6 Within a short time, Frankie began asking appellant for increasing amounts of money. Appellant provided the money but never met Frankie; instead, the funds were given to Ebony, who pretended to be Frankie’s good friend but was really the same woman as Frankie and as the victim, Sheila Randle. Soon, Frankie’s requests escalated from babysitting money, to rental cars, leasing a Honda and then a Monte Carlo, clothes, expensive jewelry, alleged medical expenses,7 and thousands of dollars in loans or gifts.8 However, it was “Ebony” who received much of this money, went to lease the Honda in November 1999, and was then in the middle of these transactions.9

16

Appellant’s financial circumstances became worse and worse. He filed for bankruptcy in November or December 1999 but continued his financing of Frankie’s wishes. In February 2000, he moved back to Dinuba to take care of his elderly parents and thought he could get rid of the stress from Frankie and Ebony by moving out of the area. Thinking Frankie could not trace him, appellant had the Honda repossessed. “Ebony” called him in Dinuba and said the car was stolen; when she figured out he had it taken, appellant testified she said “he’d better get the fucking car or they are going to come and kill his mother and father.”10 Appellant then returned the car to Ebony. 

17

At one point, according to appellant, a Black female (but not Ebony) called and said Frankie had committed suicide because appellant left without letting her know where he was going. Ebony called later that night and said Frankie, whom he still believe existed, had attempted to commit suicide and tried to get him to pay for the funeral expenses. According to appellant, Frankie was threatening to kill his mother and father so he paid her thousands for alleged medical bills. 

18

In July 2000, he went with Sheila to trade the Honda for a Monte Carlo; appellant borrowed $8000 from his mother and a friend. He testified he felt he had “no choice” but to make the payments; Frankie/Sheila was threatening to hurt his mother and father, saying she would make appellant watch as her friends shot his parents. 

19

In November 2000, appellant testified he was scared by Frankie’s threats and called the Tulare County Sheriff, told of very vague threats, and asked for someone to drive by. A tape of that call was played for the jury. He made no other calls to law enforcement.

20

The demands became more pressing. They had looked at homes in Palmdale. He did not want to buy a place for Sheila and Frankie in Palmdale, but he did not want to make a scene. He also did not and could not buy the expensive house the victim wanted him to buy her in Carson shortly before her death.

21

*3 Although the point when he realized that all three women were the same is in dispute, even appellant admits suspecting that reality and knowing it by January 2001, when Sheila purportedly told him.11 Appellant signed rental papers for an apartment in Long Beach for Sheila Randle and himself in February 2001. There is evidence he visited her on weekends.

22

According to the apartment manager, appellant was at the apartment roughly every other weekend. The victim’s mother testified he slept on the sofa on one visit and in Sheila’s bed at the mother’s house once before Sheila moved to the Long Beach apartment. Appellant vehemently denied any type of sexual or romantic relationship with Sheila or discussions about having a baby with her.12 He admitted initial romantic thoughts about Frankie but testified her threats and anger changed that. 

23

Danella Wright, the victim’s friend who lived in Palmdale, met appellant on several occasions, including a visit to Palmdale for appellant and Sheila to look at a home to buy or an apartment for Sheila and her son to rent. She saw no stress in the relationship, and appellant and Sheila seemed friendly to each other. At one point in 2000, Sheila told her that Harvey was buying her a town home but later reported that he could not get it in his name so he was going to try to get it for her in a friend’s name. Near the holidays in 2000, Sheila showed her friend a ring that looked like an engagement ring and said appellant gave it to her; asked if she was going to marry him, Sheila replied “I’m not sure.” On another visit, in 2001, appellant drove the two women and a friend to shop in Chinatown. Ms. Wright later helped Sheila decorate her new apartment in Long Beach; she used an Asian theme in the living room, just as Ms. Wright had in her own house. Sheila later bought a Buddha for the living room table.

24

Sheila was about 5′2″ to 5′4″ and between 160 and 198 pounds. Danella Wright described her friend as “Wild. Fast, a lot of life to her” and very vocal. Her mother described Sheila as an outspoken individual, a talker, who completed 11th grade and was 28 years old when she died. Makeba Fielding, her best friend, told detectives that Sheila was quite a mouthpiece, a loud person, could get physical very easily and could be easily provoked.

25

Appellant testified that he came to Long Beach at Sheila’s demand on the night of April 6. She threatened to kill his mother if he did not come down from Dinuba.13 They shared a bed that night, at her insistence; appellant denies any romantic touching. On the morning of her death, Sheila got upset and said he should buy her the $340,000 “fucking” house even if he had to force his mother to sell the ranch or if she had to dig up his father, who had died in October 2000, out of the grave. She swore at him and asked where the $8000 was.

26

Appellant’s version of the killing is that he went to the kitchen drawer, saw the knife, and took it for his own protection, thinking Sheila had talked about a gun before and he did not know if one was in the house. Hiding the knife behind him, he returned to the master bedroom and listened to her yell about the house, the $8000, and her threats to send friends to his mother’s house to make him watch while they killed his mother and then killed him. She allegedly then said “you better fucking do it” and “I’m going to kill you.” When she came towards him with a fist, he displayed the knife and without warning stuck her in the chest. They struggled and he stabbed her three to five times.14 He testified he had no intention to kill her the night before, the morning when he woke up, or even when he went to the kitchen to get the knife. Rather, he was “freaking out” and in a daze and panic. He covered her up, and her son Michael saw her from the bedroom doorway before they left for the hospital.

27

*4 Old friends from Dinuba testified as to appellant’s reputation for honesty and nonviolence.

28

Defense psychologist

29

The defense wished to present testimony by psychologist Adrienne Davis, an assistant clinical professor in the Department of Psychology at the University of Southern California who had examined appellant and prepared an 8-page report. The People moved to limit the testimony of the defense psychologist and exclude hearsay statements. The report was used as the defense offer of proof. Defense counsel described imperfect self-defense as the primary issue in the case and argued appellant’s state of mind was critical to that defense. The prosecutor argued that the report did not contain what the Penal Code allows as a defense. The trial court initially deferred ruling until hearing appellant’s testimony and stated it would review authority on cultural defenses. 

30

During the defense phase of trial, appellant’s counsel stated he told Dr. Davis to stay home based on the court’s tentative ruling. He submitted her report, and the court found Penal Code sections 25 and 29 excluded the testimony and the court could not “see admissible testimony insofar as the psychiatric opinion from the report. If you don’t have anything to add to her report, that would be the court’s ruling.”15 Dr. Davis was not called by the defense, which urges on appeal that the exclusion of her testimony was reversible error.

31

The report, dated February 1, 2002, states that Dr. Davis met with appellant several times to interview him, collect personal history information and administer several psychological tests. The report summarized the crime, including appellant’s statement to the police that “he became increasingly fearful of the victim who he reports threatened him and his mother with death if he did not comply with her wishes for continuing financial support. Mr. Kobayashi reported that eventually her demands and his refusals led to a violent argument during which he stabbed her, after which he took her remains to his mother’s home in central California and burned them.” She set forth appellant’s family history, including that he is a 46-year-old “second-generation Japanese man” who never married and has no children. He was raised by his parents in the Central California town of Dinuba. His two brothers were at least 15 years older than appellant and by the time he reached his teenage years they had each started their own families. His parents “were ‘from the old school’ in terms [of] values, discipline, the importance of working hard, independence, academic achievement and commitment to family.”

32

Appellant was shy and reserved and did not date in high school. His parents were active in church, and he was involved in the Young Buddhist Association. He completed high school in 1973, went to community college, and then graduated from Cal State Long Beach. He worked for UPS and eventually for Hughes Aircraft, Magnavox, Rockwell, and TRW. He was an avid bass fisherman and spent more time developing his fishing hobby than pursuing relationships. However, he was “curious” about on-line relationships and contacted the victim, leading her taking thousands of dollars from him while representing herself as someone else. The report continued: “When asked why he continued to given even when he felt he was being exploited, he reported that she was so demanding, and he felt sorry for her and wanted to help her out even at his own expense. When he finally could not longer meet her demands, he tried to extricate himself from the relationship but to no avail.” According to the report, he became increasingly afraid and feared the worst. When his bankruptcy, moving away, and repossession of the car did not stop the demands as he had hoped, her demands became even more intense. From his report “he found himself in a situation for which he had no frame of reference, no experience and no solution, and about which he felt vulnerable, fearful and embarrassed.”

33

*5 Dr. Davis reported on her observations of appellant and his test results. His one significant elevation in a certain subscale was for “over-controlled hostility,” a scale used “in the late 1960s to define and describe a group of inmates who had [no] prior history of violence, in fact, were model citizens until one day they erupted into uncontrollable violence that everyone who knew them argued was ‘out of character.’ “

34

Another clinical scale that was significantly elevated was one for compulsiveness. According to the report, such individuals “exhibit an unusual adherence to social conventions,” deny any internal conflict and tend to be hard working and conscientious.

35

Dr. Davis opined: “These results seem to describe [appellant] quite well. Certainly there are cultural issues that contribute to his personality development including a tendency to over-value emotional control, strong work ethic, deference to authority, denial of needs, the experience of shame when one is unable to meet the expectations of others and violates one’s own personal standards. The combination of these factors contributed to [his] mental state at the time of this offense. He was angry, overwhelmed, confused and without appropriate outlets for managing this situation.” (Italics added.)

36

Dr. Davis’s summary and discussion again set forth his lack of relationships with women and his family background in a “strict, conservative, traditional Asian family with hard-working parents who set a positive example for their three sons.” (Italics added.) She opined that because of his inadequacy in relationships “and equally strong sense of loyalty, trust and generosity, [he] was vulnerable to the potential exploits of anyone with more street smarts than himself, who would recognize his vulnerability and his gullibility and take full advantage. The fact that the victim could pose as another person over many, many months and continue to get money from him when he had yet to meet her is a testament to his naiveté, his desperate need to be needed, strong denial mechanisms, his inexperience and failure to recognize and appreciate the pathology and danger in this relationship early on.”

37

Moreover, “It is not at all surprising that [appellant] could not bring himself to contact police when the victim began to threaten him. His feelings of shame and embarrassment about the entire situation far outweighed any rational thinking and thereby further isolated him from those who may have been able to assist him. Just as salient were underling feelings of frustration and outrage, feelings for which he had no appropriate outlet. [He] was quite simply, overwhelmed. He was isolated, alone and frightened, left to cope with a novel escalating situations that had become wildly out of control. The dynamics of [his] personality, which are influenced by Asian culture, dictate a certain amount of emotional suppression, self-sacrifice and self-blame.” (Italics added.)

38

*6 Dr. Davis concluded: “Up until the time of this offense, [appellant] was a law-abiding, productive citizen with a responsible job, who found peace, satisfaction and fulfillment through competitive bass-fishing. He was a devoted son who had recently lost his father. However, having a successful relationship with a woman continued to elude him and his inept efforts to resolve this area of his life led to a tragic ending.”

39

Arguments to the jury

40

The People urged the jury to return a verdict of first degree murder. Arguing that appellant was fed up with being played like a yo yo for two years, appellant brought the buck knife from fishing, not from the victim’s kitchen drawer, and intended to kill her that weekend. At the very least, he hid the knife behind his back and stabbed her, probably when she was asleep in bed, in conscious disregard for her life, for second degree murder. The prosecutor also explained voluntary manslaughter, a killing without malice aforethought but upon a sudden quarrel, heat of passion, or conscious disregard for human life. He told the jury that there is an objective test for heat of passion/provocation and that appellant is not permitted to set up his own standard of conduct and justify or excuse himself because his passions were aroused. Neither, argued the prosecutor, can appellant create his own provocation.

41

Contending that appellant was trying to use physical evidence to contrive a lesser offense of voluntary manslaughter, he urged the jury to see appellant as someone whose lust took him off base. The prosecutor referred to appellant’s attendance at the pornographic convention and argued Sheila Randle was his fantasy girl: it was fine “[a]s long as he was getting what he wanted” but if “she didn’t put out, or ... it wasn’t the right kind or enough[,][s]he’s dead.”16 The prosecutor cited many alternatives short of killing Sheila in her bed when she was not looking that were available to appellant but were not taken.

42

The defense acknowledged the “pretty absurd” story but emphasized it was true, was “too stupid to make up,” and matched the tale told by the victim’s best friend. The defense asked for a verdict of manslaughter, emphasizing the all-enveloping and all-engrossing fear that had built up for almost two years, appellant’s actual fear of Sheila Randle, a woman who realized she had herself a pigeon and was “picking the wings off of a fly.”

43

Apparently utilizing the information in Dr. Davis’s report without mentioning the source, defense counsel argued: “Everything he does along the way here is consistent. It’s consistent with a personality that is experiencing shame and guilt. It is consistent with a personality that has difficulty dealing directly with problems.” Moreover, appellant “is a man who, in that sort of Buddhist way is concerned about harmony and interpersonal relationship. This harmony (sic ) doesn’t fit. Cognitive disdain doesn’t make any sense to him. He has no way of dealing with it. He can feel fear but he can’t confront anger and he never does. We have no report of him ever getting angry.” Addressing his relationship with the victim, she “doesn’t fit anything he knows or anything he was trained for. She doesn’t fit how he was brought up in a Japanese-American farm family.”

44

*7 The victim, a convicted felon, was portrayed as an evil person who pushed and pushed, threatened his mother, and told appellant Frankie had died. He was trying to get out of this horrible situation by moving back to Dinuba, but he could not escape her. Socially isolated, his whole life was “wrapped up in that completely dysfunctional relationship that started out thinking that he was going to be saved by a voice mailbox and he is completely enveloped in shame and embarrassment.” The defense argued the case is “not about sex” but about a person who killed in the actual but unreasonable belief in the necessity to defend against imminent peril. Defense counsel briefly mentioned the alternative of heat of passion/provocation.

45

Before reaching its verdict, the jury asked for a readback of “Harvey’s testimony about what happened the morning of April 7th from the point of waking up to when Harvey & Michael left to go to the emergency [room] the first time.” The entire deliberation took a day and a half.

46

 

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CONTENTIONS ON APPEAL

48

Appellant contends: 1. The trial court’s exclusion of the proffered cultural evidence by the defense expert deprived appellant of his constitutional rights to due process and to a jury trial. 2. Multiple jury instruction errors compel a reversal of the judgment: a. The trial court had a sua sponte duty to modify CALJIC No. 8.42 to instruct that the jury should consider cultural evidence in determining the sufficiency of the provocation. b. There is an equal protection and due process right to a culturally specific evaluation of the element of provocation as it relates to the crime of manslaughter. c. The error in giving CALJIC No. 8.51 was compounded by the trial court’s extemporaneous comments which where tantamount to a directed verdict against a manslaughter finding. d. Cumulative prejudice from the multiple instructional errors constitutes reversible error. 3. Because the trial court abused its discretion in admitting the photograph depicting appellant at the adult entertainment convention, appellant’s constitutional rights to a fair trial and to due process were violated, compelling a reversal of the judgment.

49

Respondent contends that the award of 157 days of presentence custody credits was erroneous. Appellant counters that the issue is moot in that the Department of Corrections has brought the issue to the trial court’s attention. (People v. Hill (1986) 185 Cal.App.3d 831, 834, 230 Cal.Rptr. 109.) Having received no contrary information from respondent, we do not address that issue. In addition, at oral argument, appellant’s counsel provided a minute order of May 31, 2002, demonstrating the trial court’s correction of the credits. We therefore do not address that issue.

50

DISCUSSION

51

1. Dr. Davis’s report and appellant’s testimony do not support the cultural defense appellant posits on appeal.

52

Appellant wanted to use the expert’s report in order to negate malice and have his crime reduced to voluntary manslaughter (People v. Blakeley (2000) 23 Cal.4th 82, 88, 96 Cal.Rptr.2d 451, 999 P.2d 675) and on appeal claims its exclusion deprived him of his constitutional rights to due process and to a jury trial. He recognizes that evaluation of heat of passion or provocation is dependent on the reaction of the hypothetical “reasonable person of average disposition” and cites cases stating that the jurors must place themselves in the shoes of the defendant and then judge whether his conduct was reasonable. (People v. Humphrey (1996) 13 Cal.4th 1073, 1086, 56 Cal.Rptr.2d 142, 921 P.2d 1 [expert testimony that defendant was suffering from battered women’s syndrome admissible in murder prosecution both on question of whether defendant actually believed that it was necessary to kill in self-defense and on the reasonableness of her belief]; People v. Minifie (1996) 13 Cal.4th 1055, 1065, 56 Cal.Rptr.2d 133, 920 P.2d 1337.) He argues that the jurors, in placing themselves in “like circumstances,” are able to consider the physical, mental, and cultural characteristics of the defendant.

53

*8 Appellant analogizes his predicament to the defense of battered women’s syndrome, arguing: “It is understandable that a Japanese man may react violently to the latest in a series of threats over two years after hiding the festering shame and embarrassment of having cause his own desperate predicament. A predicament initiated by his loneliness and resulting in further anomie when bullied and extorted by death threats to himself and to his parents. For in Japanese culture, intense shame attaches to males who lack emotional control, who are unable to meet the expectations of others, and who violate their personal standards. (Davis Report, pp. 7-8.) Certainly, appellant’s cultural standards for filial piety were repeatedly trashed by Sheila Randle’s orders to borrow money from his elderly mother, to give her a share of his father’s funeral proceeds, to sell the farm from under his mother, and even to dig his father up from his grave if that [is] what it took to get her a house.” Moreover, “[h]ere, there was evidence that appellant had experienced a series of events over two-year period which culminated in the heated argument where Sheila threatened to make him watch as her friends killed his mother and then threatened to kill him as she charged at him with her fist even after he brandished the knife.” Thus, “[t]he expert testimony concerning Japanese culture was relevant to explain the significance of these events on appellant’s state of mind, and to show how Sheila’s verbal threats and physical assault could have constituted ‘sufficient provocation’ to cause appellant to kill her in a ‘heat of passion’ or how he acted in an unreasonable, but good faith, belief to act in self-defense.” Furthermore, he contends that that theory “could not be fully understood by the jury without reference to the expert testimony explaining the cultural evidence factors affecting appellant’s state of mind.”

54

[1] Appellant’s argument on appeal reads more into both the Davis report and the arguments for its admissibility at trial than is supported by the record. The argument below focused on appellant’s effort to demonstrate his actual, if perhaps objectively unreasonable, belief that “he had no option but to do what he did at the time it happened.” In arguing the admissibility of Dr. Davis’s testimony, trial counsel clearly focused on imperfect self-defense and not provocation or heat of passion.17 (See In re Christian S. (1994) 7 Cal.4th 768, 30 Cal.Rptr.2d 33, 872 P.2d 574 [imperfect self-defense survives the abolition of diminished capacity defense].) The argument now made, that “like circumstances” for provocation/heat of passion must consider one’s cultural background, was not articulated in the trial court.

55

Our reading of Dr. Davis’s report, which was the sole offer of proof to the trial court, is that she mentioned appellant’s family background and Japanese culture, found his personality was decisive in his actions, but only vaguely tied his personality characteristics to his cultural background, e.g., “The dynamics of Mr. Kobayashi’s personality, which are influenced by Asian culture, dictate a certain amount of emotional suppression, self-sacrifice and self-blame.” Neither the report nor appellant’s own testimony adequately related his cultural background to evidence that would be admissible as to his state of mind. Furthermore, defense counsel was allowed to argue appellant’s personality traits, in evidence through appellant’s own testimony and reports of his conduct from others, in urging the jury to find imperfect self-defense.18

56

*9 Thus, on the record before us, the trial court did not err in excluding Dr. Davis’s testimony as it was presented in the offer of proof. We need not and do not decide if a different offer of proof with a more thorough analysis of a defendant’s cultural background and beliefs, tied in with a defendant’s testimony that would support the expert’s opinion, would compel admission of such expert testimony. In addition, we cannot conclude that a result more favorable to appellant would have resulted from any cumulative evidence in Dr. Davis’s report.

57

2. There was no prejudicial instructional error.

58

Appellant claims that the trial court erred by failing to modify CALJIC No. 8.42 and by giving CALJIC No. 8.51. He argues that the “prejudice flowing from these instructional errors, separately and cumulatively, compels reversal of the judgment....”

59

a. The trial court did not have a sua sponte duty to modify CALJIC No. 8.42 to instruct that the jury should consider cultural evidence in determining the sufficiency of the provocation.

60

[2] The trial court instructed the jury in terms of CALJIC No. 8.42, the standard instruction on regarding sudden quarrel or heat of passion and provocation. Appellant contends that such an instruction is “insufficient standing alone to inform the jury that it should evaluate the sufficiency of provocation from the standpoint of a reasonable person in terms of defendant’s position as a Japanese American;” that there “was a reasonable possibility that the jurors could have interpreted CALJIC No. 8.42 to preclude consideration of the sufficiency of provocation from the defendant’s perspective;” and the court prejudicially erred in failing to give a sua sponte instruction on the relevancy of cultural evidence to the reasonable person standard.19

61

The instructions given were correct. Appellant was allowed to present fully his defenses, with a complete rendition of his own state of mind due to the victim’s escalating demands and threats and his reaction to her. (See People v. Minifie (1996) 13 Cal.4th 1055, 1065-1068, 56 Cal.Rptr.2d 133, 920 P.2d 1337.) If the instructions were confusing, appellant must request clarification. “Because defendant did not request clarification of the otherwise adequate instructions below, he may not complain here. (E.g., People v. Sanders [ (1995) ] 11 Cal.4th [475,] 533, 46 Cal.Rptr.2d 751, 905 P.2d 420.)” (People v. Alvarez (1996) 14 Cal.4th 155, 223, 58 Cal.Rptr.2d 385, 926 P.2d 365, fn. omitted; see also People v. Saille (1991) 54 Cal.3d 1103, 1117, 2 Cal.Rptr.2d 364, 820 P.2d 588 [pinpoint instructions need be given only on request, not sua sponte].) We need not and do not reach the issue of whether appellant’s proposed instruction, provided for the first time on appeal, is either an accurate statement of law or supported by the record in the case at bench.

62

b. Given the record before this court, we decline to reach the issue of whether there is an equal protection and due process right to a culturally specific evaluation of the element of provocation as it relates to the crime of manslaughter.

63

*10 [3] Appellant argues that “Equal treatment of ethnic minority defendants requires that if certain provocative acts are sufficiently offensive in mainstream American culture to reduce murder to manslaughter [citations], then certain acts that are equally provocative in appellant’s culture should be treated as equally mitigating.” He asks us to decide this as an issue of first impression. (See People v. Romero (1999) 69 Cal.App.4th 846, 853-855, 81 Cal.Rptr.2d 823 [finding no error and no prejudice from excluding proposed testimony of a sociology professor on Hispanic culture].) Given the record before us, we do not find that this particular issue was specifically raised in the trial court and we decline to address it on appeal.

64

c. There was no reversible error in giving CALJIC No. 8.51 or in the trial court’s extemporaneous comments about involuntary manslaughter.

65

[4] The involuntary manslaughter instructions had been withdrawn by both counsel. Appellant argues that CALJIC No. 8.51, which distinguishes murder and manslaughter, was irrelevant to the trial issues and only served to confuse the jury. Appellant claims the concluding language of 8.51 “confused and effectively eviscerated any exculpatory jury interpretation of the preceding CALJIC No. 8.50 .” 

66

CALJIC No. 8.50 told the jury: “The distinction between murder and manslaughter is that murder requires malice while manslaughter does not. [¶] When the act causing the death, though unlawful, is done in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation, or in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. 

67

“To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel or in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury.”

68

The written version of CALJIC No. 8.51 adds: “If a person causes another’s death, while committing a felony which is dangerous to human life, the crime is murder. If a person causes another’s death, while committing a misdemeanor ... which is dangerous to human life under the circumstances of its commission, the crime is involuntary manslaughter.

69

“There are many acts which are lawful but nevertheless endanger human life. If a person causes another’s death by doing an act or engaging in conduct in a criminally negligent manner, without realizing the risk involved, he is guilty of involuntary manslaughter. If, on the other hand, the person realized the risk and acted in total disregard of the danger to life involved, malice is implied, and the crime is murder.20

70

*11 We have read the instructions as a whole, as the jury was instructed to do, and conclude the jury was properly instructed on the difference between murder and manslaughter and we do not find the charge misleading. (People v. Ochoa (1999) 19 Cal.4th 353, 421, 79 Cal.Rptr.2d 408, 966 P.2d 442 [jury and appellate court look at instructions as a whole]; People v. Castillo (1997) 16 Cal.4th 1009, 1015, 68 Cal.Rptr.2d 648, 945 P.2d 1197.) Even assuming arguendo the jury considered the second paragraph of 8.51 in the written instructions, that paragraph in context does not misstate the law. Malice may indeed be implied when a “person realized the risk and acted in total disregard of the danger to life involved.” (See People v. Blakeley, supra, 23 Cal.4th 82, 87, 96 Cal.Rptr.2d 451, 999 P.2d 675 [juries should be instructed that malice is implied “ ‘when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ [Citation.] ... [F]or convenience we shall describe this mental state as ‘conscious disregard for life.’ “] See also People v. Rios (2000) 23 Cal.4th 450, 461, fn. 7, 97 Cal.Rptr.2d 512, 2 P.3d 1066 [“voluntary manslaughter, but no lesser offense, is also committed when one kills unlawfully, and with conscious disregard for life, but lacks malice because of provocation or imperfect self-defense.”].)

71

There was neither error nor prejudice in the instructions or the trial court’s remarks. The claim of cumulative prejudice from multiple instructional errors is likewise without merit.

72

3. The trial court did not abuse its discretion in admitting the photograph depicting appellant at the adult entertainment convention.

73

[5] [6] Appellant unsuccessfully objected, on the grounds of relevance and Evidence Code section 352, to the prosecutor’s use of a photograph seen by the detectives in appellant’s bedroom in Dinuba. He contends that the trial court abused its discretion in admitting evidence of the photograph, which is described as depicting a pornographic star in a bikini at an adult entertainment convention sitting on appellant’s lap. Appellant contends his rights to a fair trial and due process were violated.

74

The trial court did not abuse its discretion in admitting evidence of the photograph the detectives had seen in appellant’s bedroom. (People v. Barnett (1998) 17 Cal.4th 1044, 1118-1119, 74 Cal.Rptr.2d 121, 954 P.2d 384 [abuse of discretion standard of review for Evidence Code section 352 admission of evidence].) The photograph was relevant in light of appellant’s vehement denial of any sexual or romantic relationship with the victim despite his visits to her and sleeping in the same bed on several occasions. The photograph and evidence of his attendance at the adult entertainment convention contradicted his portrayal of himself as a man who had to be asked to share the victim’s bed and then expected and wanted no sexual contact with her. It also corroborated his interest in Frankie, whom he thought as a stripper, perhaps explaining why he continued such an unfulfilling relationship with a woman he never even met. “Conversely, the evidence was not unduly prejudicial within the meaning of Evidence Code section 352 because it did not amount to ‘ “ ‘evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ “ ‘ [Citations.]” (Id. at pp. 1118-1119, 74 Cal.Rptr.2d 121, 954 P.2d 384.)

75

*12 [7] The constitutional and other grounds raised on appeal were not raised in the trial court and may be rejected on appeal. (People v.. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20, 36 Cal.Rptr.2d 235, 885 P.2d 1.) As explained, above, the evidence was admissible. Given the cumulative testimony of appellant’s interested in Frankie as a stripper and liking to talk to her about sex on the phone, error if any in admitting the challenged evidence was harmless.

76

DISPOSITION

77

The judgment is affirmed.

78

 

79

We concur: RUBIN and BOLAND, JJ.

80

All Citations

81

Footnotes

 

1

 

The trial court imposed 15 years to life for the second degree murder plus a consecutive one-year sentence for personal use of a knife pursuant to Penal Code section 12022, subdivision (b)(1). Denying a motion for new trial or a request to reduce the offense, the court stated “I cannot find, either factually or in an equitable sense, that I should do that. The jury verdict will stand .” Unless otherwise indicated, all further statutory references are to the Penal Code.

 

2

 

Appellant, knowing the victim was dead, pretended to call her on his cell phone while taking the boy to his grandmother’s home. Appellant told the boy he cut himself with a hunting knife. Appellant testified he did not bring the knife with him but obtained it from the victim’s kitchen and hid it behind his back as he reentered the bedroom.

On the morning of the homicide, appellant told the nurse practitioner at the hospital that he was opening a box with a buck knife. He was alert, oriented, and in no distress.

 

3

 

The officers could smell the odor of rotting flesh and found a human torso in the barn; several pieces of a burned human body and a knife were inside a duffel bag.

 

4

 

However, he did not mention Sheila’s threat to dig up his father. In the taped confession, unlike in court, he may have told the detectives that he and the victim were just off the bed.

 

5

 

The jury was instructed on first degree murder, second degree murder, and voluntary manslaughter. The parties agreed not to instruct on involuntary manslaughter. In reading the instructions, the trial court, apparently inadvertently and without objection by defense counsel, started to instruct on involuntary manslaughter before retracting that instruction. Appellant contends that the comments made by the court at that time amounted to a directed verdict against manslaughter.

 

6

 

After appellant testified he liked to talk about sex on the phone, the People sought to introduce evidence that the investigators found a picture in appellant’s Dinuba bedroom of appellant with a “porn film star” in a bikini sitting on his lap. The court initially was not going to admit the photograph or evidence of appellant’s attendance at the convention. After the age of appellant was established at near to that in the photograph, the court decided to allow the testimony. Appellant then testified he went to the adult entertainment convention in June 1999 and the detectives did find a photo of him with a scantily clad young lady sitting on his lap. In addition, he admitted Frankie said she was an exotic dancer, which was “just more curiosity.”

 

7

 

Appellant testified that Frankie screamed at him in Spanish and threatened to pour battery acid over his car when he denied her money for alleged cancer treatments. He took out a loan to get her the $2000. According to appellant, she also told him she knew Mexican gang bangers and some Crips who would come after him.

 

8

 

The victim’s best friend estimated his total gifts to Sheila Randle at $250,000. She was equivocal about whether there was a sexual relationship between appellant and the victim, initially telling the detectives there was not. She knew that the victim had an actual boyfriend, Eugene, who at some point was serving 35 years in prison for murder.

 

9

 

Sheila’s best friend, Makeba Fielding, verified the scam of using the name “Frankie” and getting money, gifts, and cards from appellant. She also corroborated Sheila’s profanity laden demands on appellant, Sheila’s lies to the phone company to get his address and phone number in Dinuba when the Honda was repossessed, her telling appellant that Frankie was dead, and even her request for part of the money received by the Kobayashi family when appellant’s father died. Hoping to help find her friend, she reported all this to the detectives on April 17, a month before they interviewed appellant in Dinuba. She did not remember telling the detectives of any threat by Sheila to kill appellant’s mother, but Detective Edwards reported that Makeba Fielding said she heard Sheila tell appellant she knew where he lived and would go and kill his mother if he did not give her the car back.

 

10

 

He did not know how he got his unlisted number and was surprised to hear from her.

 

11

 

Appellant also testified he knew Sheila Randle was also Ebony in the latter part of 1999 or early spring 2000, prior to calling the Tulare sheriff. Indeed, his knowledge of Sheila/Ebony’s address, where he had the Honda repossessed, seems to indicate he knew someone aside from Frankie was the primary user of the Honda. In addition, despite his professed fondness for “Frankie,” he made no effort to visit her in a named hospital after her reported suicide attempt.

Despite the announcement by Sheila in January 2001, which appellant found to be a shocker, he continued the relationship with Sheila. He again felt “no choice” and the threats were occurring more often.

 

12

 

Sheila’s best friend testified that Sheila once asked what she would think if Sheila was to have a baby by appellant.

 

13

 

Nevertheless, he left his mother alone in Dinuba and did not move her to a safer place or ask anyone to look in on her.

 

14

 

Despite the struggle testified to by appellant, he had no injuries other than the cut to his hand.

 

15

 

Penal Code section 25, added by initiative in 1982, abolished the defense of diminished capacity.

Section 28, subdivision (a), proscribes evidence of mental disease, mental defect or mental disorder to show or negate the capacity to form any mental state, including premeditation, deliberation, and malice aforethought. However, such evidence “is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.”

Section 29 provides: “In the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.” (See People v. Nunn (1996) 50 Cal.App.4th 1357, 1364-1366, 58 Cal.Rptr.2d 294 [permissible to allow presentation of detailed expert testimony relevant to whether defendant harbored a required mental state, but not to conclude the ultimate question of whether defendant had or did not have a particular mental state at the time he acted]; People v. Erickson (1997) 57 Cal.App.4th 1391, 1401, 67 Cal.Rptr.2d 740 [applying same general rule to allow evidence of battered women’s syndrome but not “to predict the actual state of mind of a particular individual at a given moment”].)

 

16

 

In his closing argument, the prosecutor repeated the theme, stating appellant is a monster who could not control his lust and was blinded by it. He wanted sex, wanted a stripper, and was characterized by the prosecution as “a lust hound.”

 

17

 

His comment to the court was “I think there is a just, a traditional manslaughter argument as well as provocation and heat of passion but I think this case is a, if I were going to center this case on any single thing, imperfect self-defense would be it, and I submit that Mr. Kobayashi’s state of mind at the time of the killing is critical to whether or not he successfully makes an imperfect self-defense case. [¶] That is to say, from his point of view, and I will repeat myself right up to the present moment, he is absolutely convinced he had no option but to do what he did at the time it happened.”

 

18

 

Defense counsel’s closing argument made references to appellant’s “Buddhist way” and being “brought up in a Japanese-American farm family.”

 

19

 

Appellant proposes an instruction in his opening brief: “The [defendant] [and][or] [the prosecution] has introduced evidence that the defendant has a cultural background that may be unique to you. Such cultural evidence may be relevant to your evaluation of whether the provocation in this case was of such a character and degree as to cause a reasonable person in the position of the defendant to have lost self-control and to have acted upon impulse rather than deliberation and reflection. You should give this evidence whatever weight you think it deserves. However, you may not reject this evidence out of caprice or prejudice because the defendant has cultural beliefs or practices different from your own.”

 

20

 

This second paragraph was not read to the jury but was in the packet of written instructions available to them. The first paragraph was read as follows: “If a person causes another’s death while committing a felony dangerous to human life, the crime is murder. If a person causes another’s death while committing a misdemeanor ... which is dangerous to human life under the circumstances of its commission, the crime is involuntary manslaughter. [¶] I don’t need to define involuntary manslaughter because that is not part of what you are going to be asked to decide. You have four things before you. Murder 1, Murder 2, voluntary manslaughter and manslaughter. [¶] If a person causes death while committing a felony-I just read to constitute murder or manslaughter there must be, in addition to the death of a human being-I’m going to strike that.”