People v. Nunn

• Decision Date: 18 November 1996
• Docket Number: No. D023930,D023930
• Citation: People v. Nunn, 58 Cal.Rptr.2d 294, 50 Cal.App.4th 1357 (Cal. App. 1996)
• Court: California Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 8427, 96 Daily Journal D.A.R. 13,841 The PEOPLE, Plaintiff and Respondent, v. Rodney Holden NUNN, Defendant and Appellant.

Page 294

58 Cal.Rptr.2d 294

50 Cal.App.4th 1357, 96 Cal. Daily Op. Serv. 8427,

96 Daily Journal D.A.R. 13,841

The PEOPLE, Plaintiff and Respondent, v.Rodney Holden NUNN, Defendant and Appellant.

No. D023930.

Court of Appeal, Fourth District, Division 1, California.

Nov. 18, 1996.

Certified for Partial Publication. ¹

Review Denied March 12, 1997.

[50 Cal.App.4th 1359] Martin Nebrida Buchanan, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont and Peter

Quon, Jr., Deputy Attorneys General, for plaintiff and respondent.

BENKE, Acting Presiding Justice.

In this casewe discuss the limitations imposed by PENAL CODE SECTION 29² on the scope of opinion testimony concerning a criminal defendant's state of mind at the time of a charged offense.

AppellantRodney Nunn was convicted of four counts of attempted murder and nine counts of assault with a deadly weapon.Thirteen section 12022.5, subdivision (a), firearm use allegations and two section 12022.7 infliction of great bodily injury allegations were found true.Nunn was sentenced to a prison term of 39 years, 8 months.He appeals, arguing the trial court erred in excluding defense psychological testimony and that the evidence was insufficient to support two of the attempted murder convictions.

FACTS

A.Prosecution Case

At about 5:30 p.m. on September 25, 1994, Benito Asencio had finished working at a nearby farm and was sitting on an embankment next to Black Mountain Road waiting for a ride.Two other workers, Efigenio Uriostegui and Emilio Nava, were about three feet away.Eight or nine other men were waiting in the same general area.Appellant was standing behind a fence about 50 feet away holding a rifle and pointing it at the ground.Appellant yelled something the men did not understand, then pointed the gun in the direction of Asencio, Uriostegui and Nava and began to fire.The first shot hit Asencio in the hip, he tried to run but fell to the ground seriously wounded.Uriostegui and Nava ran and were not hit.

On the afternoon of September 25, 1994, as he was driving his truck on Black Mountain Road, Arnulfo Alvarez saw appellant firing a rifle at a group of Mexican men, heard five or six shots and saw Asencio being struck by one of the bullets.Alvarez stopped and used his mobile radio to report the shooting.He then heard more shots.As he drove on he made eye contact with appellant.Appellant pointed the gun at Alvarez.Alvarez lay down on the seat and then heard a shot.When Alvarez looked up he saw appellant pointing the gun, but not firing it, at a group of men who were running away.

At about the same time, Fidel Alvarez was driving his car, with three passengers, on Black Mountain Road and starting to turn into a ranch.Alvarez noticed appellant standing nearby holding a rifle.Appellant yelled at Alvarez not to enter.As Alvarez drove slowly past, he looked in his rear view mirror and saw appellant pointing his rifle at Alvarez's car.Appellant fired his gun but neither Alvarez nor his car was hit.

On September 25, 1994, Alejandro Nava was walking down a road and saw appellant holding a rifle.Before appellant fired, Nava heard him yell "fucking Mexicans" at the men standing on the road.

Juan Hernandez saw appellant firing at one group of men, then at Asencio, Nava and Uriostegui.Appellant then fired in the direction of Hernandez and his companions, Alejandro Nava and a man named Carlos.

Appellant was arrested later in the evening.Appellant had been drinking but was not intoxicated.

About two weeks before Ascencio was shot, appellant fired at Juan Hernandez from a distance of three hundred yards.The bullet came close enough to Hernandez that he could hear it pass.

B.Defense Case

Appellant testified that in 1983he began working as a caretaker on the property where the shooting occurred and was living alone there in a trailer.In the spring of 1990 the adjoining property was leased for the growing of tomatoes.Thereafter appellant would see farm workers gather in the area.The workers drank alcoholic beverages, trash began to accumulate on the property appellant oversaw and there was evidence of tampering with the fences.

On September 25, 1994, appellant spent the day drinking liquor.Around sundown, now drunk, he went out for his daily walk around the perimeter of the property.Appellant armed himself with a .22 caliber rifle as he often did, in case he encountered a rattlesnake.As appellant checked the watering of a tree, he was startled when he saw about six men standing next to the fence.The men appeared to be Mexican, were lighter skinned than the farm workers and did not appear to have been working the fields.Appellant told the men to get away from the fence.One of the men responded angrily in Spanish.Two other men stepped out from behind a bush on the other side of the fence but near appellant.Appellant, again startled, told them to leave.

Appellant fired a shot into the air to scare the men.The men by the bush ran but the six others did not.One of the remaining men made a hostile comment that led appellant to believe they were going to assault him.Appellant lowered the rifle, pointed it to the right of the men and fired.As the men ran, appellant continued to fire to scare them.Appellant was not intending to shoot anyone and was not aware anyone else was in the area.Appellant, unaware anyone had been hit, returned to his trailer.Appellant denied ever firing his rifle at Juan Hernandez.

Clinical psychologist Glenn Lipson evaluated appellant.He concluded appellant had been through several traumatic incidents while serving in Vietnam and stated that such experiences can cause a person to overreact in subsequent traumatic situations.Appellant had a substance abuse problem with alcohol and was emotionally "constricted."Lipson concluded appellant was very intelligent, had experienced emotional trauma and had problems with the use of alcohol.He found no signs of racial hatred in appellant's makeup.

DISCUSSION

A.Psychological Evidence

Appellant argues the trial court misinterpreted the limitations on opinion testimony embodied in sections 28, subdivision (a), and29 and erred in excluding the opinion of Dr. Lipson that based on appellant's inebriation and tendency to overreact to stress, he fired his rifle impulsively.

Section 28, subdivision (a), states: "Evidence of a mental disease, mental defect or disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.Evidence of mental disease, mental defect or mental disorder 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 states: "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."

1.Background

Before his testimony, a hearing was held concerning the permissible scope of the testimony to be offered by Dr. Lipson.The prosecutor noted that in his report, after reviewing appellant's history, Dr. Lipson stated: "[Appellant's] tendency to overreact, coupled with his level of inebriation, resulted in his impulsive firing of the weapon."The prosecutor argued such statement was inadmissible under sections 28and29.The trial court agreed.

The court instructed Dr. Lipson his opinion that appellant had fired impulsively was inadmissible since it was a conclusion concerning appellant's intent at the time of the shooting.The court stated, however, Lipson was free to testify to his other findings and conclusions.

Dr. Lipson testified extensively concerning appellant's background and mental condition.He stated appellant experienced several traumatic incidents related to his service with the Navy during the Vietnam War.Lipson stated such experiences can result in a person overreacting to subsequent stressful events.

The prosecutor objected, arguing Dr. Lipson was testifying to appellant's state of mind in violation of the court's ruling.The court disagreed, stating it was proper for the defense to present evidence concerning appellant's mental condition and the effect such condition would have on his state of mind at the time of the shooting.What the expert could not do was give his opinion concerning whether the defendant did or did not act with a specific intent or mental state.

2.Discussion

Courts have uniformly concluded that sections 28and29 are "legitimate legislative determinations on the admissibility of certain classes of evidence and do not deprive a defendant of his or her right to present a defense."(People v. Whitler(1985)171 Cal.App.3d 337, 340-341, 214 Cal.Rptr. 610;People v. Young(1987)189 Cal.App.3d 891, 904-905, 234 Cal.Rptr. 819;People v. McCowan(1986)182 Cal.App.3d 1, 11-15, 227 Cal.Rptr. 23(McCowan );People v. Jackson(1984)152 Cal.App.3d 961, 969-967, 199 Cal.Rptr. 848(Jackson ).)

Appellant seems to suggest that section 29 allows an expert to express any opinion, however specific and determinative of the mental issues involved, as long as he does so without using the name of the specific mental state involved, for example, malice aforethought.In support of this...