people-v-singleton

People v.
Singleton
2005 | Cited 0 times | California Court of Appeal | March 28, 2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 977(b). This opinion has
not been certified for publication or ordered published for purposes of rule 977.
Antron Singleton appeals from the judgment entered following his convictions by jury of count one -
first degree murder (Pen. Code, § 187) with a special circumstance finding that the murder was
intentional and involved the infliction of torture (Pen. Code, § 190.2, subd. (a)(18)), and count two -
aggravated mayhem (Pen. Code, § 205). At the conclusion of the defense presentation of evidence
during the sanity phase of trial, the court granted the People's motion for a directed verdict. He was
sentenced to prison for life without the possibility of parole on count one, with a consecutive term of
life with the possibility of parole on count two.
In this case, we hold: (1) the trial court did not reversibly err by refusing to instruct on involuntary
intoxication, since appellant's ingestion of PCP was voluntary and his intoxication resulted from his
criminal negligence, therefore, he was voluntarily intoxicated at the time of the crimes and not
entitled to an involuntary intoxication instruction, and, in any event, the claimed error was not
prejudicial, and (2) the court did not reversibly err by receiving expert opinion testimony that
appellant acted intentionally and deliberately, or by permitting the expert to rely on appellant's rap
lyrics as a basis for that opinion. The witness qualified as an expert on the issue, the opinion was
admissible to rebut defense evidence on the subject, the expert reasonably relied on the lyrics as a
basis for his opinion, the testimony was neither inadmissible hearsay, propensity evidence, nor
excludable under Evidence Code section 352, and the claimed error was not prejudicial.
We also hold: (1) the court properly denied appellant's motion for a new trial based on alleged juror
misconduct, since the motion was supported only by a single declaration containing inadmissible
hearsay; (2) multiple punishment on counts one and two did not violate Penal Code section 654, since
the trial court reasonably could have concluded that appellant had independent criminal objectives
when committing the offenses; (3) imposition of a Penal Code section 1202.45 restitution fine was, as
respondent concedes, error since a term of life without the possibility of parole was a component of
appellant's sentence; (4) the trial court had inherent power to remove appellant's insanity defense
from the jury if there was insufficient evidence to support it; the court's removal of the issue was
proper because the evidence was insufficient as a matter of law since any alleged insanity was solely
caused by appellant's voluntary intoxication; and, since any alleged insanity was solely caused by
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People v. Singleton
such intoxication, the record does not demonstrate that, as a matter of law, appellant was insane; and
(5) consecutive sentencing on counts one and two did not violate Blakely v. Washington.
FACTUAL SUMMARY
1. Guilt Phase
a. People's Evidence
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the
evidence, the sufficiency of which is undisputed, established that prior to April 10, 2002, Tynisha
Tsais, the decedent, was living with her boyfriend, Thomas Moore, in a Los Angeles apartment in the
10700 block of Figueroa. At some point, appellant, nicknamed Lurch, moved in with them. Appellant
concedes he was a rap artist known as Big Lurch. Tsais disliked appellant because he was interfering
with her relationship with Moore. Tsais and Moore argued about the fact that appellant was in the
residence.
Between perhaps 8:30 and 10:00 a.m. on April 10, 2002, Derek Christopher went to Moore's
apartment to buy marijuana. Christopher was handicapped, and appellant carried Christopher's
wheelchair upstairs. Moore told Christopher to stay and watch over Tsais and appellant. Christopher
asked why, but Moore did not reply. Appellant and Christopher conversed, and appellant let
Christopher listen to appellant's music.
Christopher smelled PCP inside the apartment. Christopher testified appellant appeared to be "high"
and spoke in a sluggish manner. However, Christopher later testified that he remembered telling the
prosecutor that appellant "did not appear to be under the influence of PCP, that [Christopher]
smelled it, but everything seemed to be normal[.]"
Tsais entered the bathroom and appellant looked at Christopher like appellant was up to something.
Christopher testified he had "little signs, . . . that I read that wasn't right[.]" Appellant told
Christopher, "Ì'm going to get me some pussy.'" Christopher went downstairs, assisted by Tina
Hardaway, a neighbor. As Christopher went downstairs, he heard someone screaming, "Stop, Stop."
Christopher left.
Hardaway returned to her apartment, went inside, and heard a "bump" coming from Moore's
apartment. Hardaway later saw appellant leave Moore's apartment. Appellant was wearing pants but
not a shirt, and was wearing gloves with a red substance on them. About 20 or 30 seconds later,
appellant returned to the apartment. Hardaway heard running water. Perhaps 45 minutes later,
appellant left again. He was nude, covered in blood, and eating. Appellant walked downstairs and out
of the apartment complex. Hardaway called the police.
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People v. Singleton
About 1:30 p.m., Alisha Allen, Tsias's friend, called Tsais's telephone number to speak with Moore,
but appellant answered the phone. Allen asked for Moore, but appellant replied that Moore and
another person had left for the mall. When asked who was at the apartment, appellant replied that
Tsais and Christopher were there.
Allen was later at 110th and Hoover when she saw Christopher. Christopher told Allen that she
should check on her friend because he had heard her friend screaming. Allen went to Tsais's
apartment and saw appellant exit the apartment complex. Appellant was nude and covered with
blood. Appellant walked southbound on Figueroa, staring at the sky, and appeared to be braiding his
hair. Allen flagged down a police car and reported that a nude man was walking down the street.
Allen told police at some point that Moore and appellant smoked "too much Sherm."
Allen went to Moore's apartment and heard water running in the shower. Allen entered Moore's
apartment and saw a closed door with blood on it. Allen entered Tsais's room and saw Tsais's nude
body. Tsais's face was chewed up and had teeth marks on it. Allen testified Tsais's chest was cut or
bruised, Allen saw "human tissues[,]" and Allen saw "everything pretty much sitting on top of
[Tsais's] body."
About 2:20 p.m., Los Angeles Police Officer Melvin Hernandez and his partner were in a marked
patrol car on 108th Street, near Moore's apartment, when they saw appellant walking down the street
nude. The officers thought appellant was under the influence of PCP since, most times they had
contacted PCP users, the users had stripped their clothes and were nude.
The officers approached appellant and saw that he had blood on his body, and blood and a meaty
substance on his goatee. Appellant, sweating, turned and looked at the officers. The officers exited
their car and ordered appellant to raise his hands, kneel, lie down, and spread his arms. Appellant
immediately complied with each command. Appellant was handcuffed and placed in the police car
without incident. En route to the police station, appellant, without police questioning, stated, "Òh,
Jesus, God, did I kill her? Oh, God, did I kill her?'" Appellant never said anything to the effect that he
killed the devil.
Los Angeles Police Detective Raymond Jankowski went to Moore's apartment and found Tsais's
body in the bedroom. Her chest cavity had been ripped and a human organ and part of another organ
were near her body. There were cuts, tears, and bruises on Tsias's body.
A knife with part of its blade broken off was found under Tsais's body, and the broken part of the
blade was near the body. There was a trail of blood between the bedroom and bathroom.
Blood-stained clothing was neatly piled against the bathtub, and water was running in the shower.
The trail of blood went out the apartment.
A Los Angeles Police criminalist, an expert in blood splatter analysis, testified that blood stains,
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People v. Singleton
consistent with repeated impact with a blunt object on the blood source, were found in the bedroom.
Blood, diluted with water, was found on the bathroom counter. Based on the blood patterns, the
criminalist opined at trial that Tsais was assaulted inside the bedroom while the door was closed.
The assailant then moved the body, opened the door, and went into the bathroom.
A coroner who examined Tsais testified as follows. Tsais suffered numerous injuries, multiple
contusions, and "lots of abrasions" to the head. There were extensive injuries scattered on both sides
of her face, but she had a large laceration and incised wounds on the right side of her face, and the
most extensive injuries were on that side of her face. Tsais's facial bones were fractured, and a tooth
was partially dislocated. Tsais had injuries beneath her scalp. Her brain was injured and swelling,
and there were contusions on her brain. There was a large laceration and bruising on the left side of
her face. There was more laceration above her eye, laceration on her eyes, and bruising around her
eyes. There were multiple incised wounds near her nose, and the wounds were "[m]ore like . . .
cutting[]" than stabbing wounds. There was also an abrasion on her right ear.
There were several superficial incised wounds, caused by a sharp object, on the side of Tsais's neck.
There were also multiple cuts, lacerations, and scratches on her neck. Tsais's shoulder was injured
and her neck vertebrae was fractured. A photograph of the right side of Tsais's body depicted a large
incised wound and multiple superficial incised wounds. Tsais had two or three defensive bruising
wounds on her left hand.
Tsais had a large, gaping incised wound, about nine inches long, on her chest and, to the side, there
were perhaps 11 superficial incised wounds. Tsais's right lung had been removed. Parts of the right
lung were recovered from the apartment. Appellant's stomach was pumped at the hospital, and the
contents contained an organ, that is, tissue resembling a lung.
The following occurred during the coroner's direct examination:
"Q: The big gaping wound that was in the chest, you described it in your report as a rapidly fatal
wound. [¶] What does that mean?
[¶] A: Taking out the lung cuts major blood vessels." According to the coroner, the blood would all
drain from the cut through the vessels, and would "bleed out rapidly within seconds or minutes."
Removal of the lung was "one of the more terminal events." All other wounds preceded the removal
of the lung, since the hemorrhaging associated with those wounds would not have occurred once the
lung was removed. There was no trauma to Tsais's vagina, but semen was present. The coroner did
not know how long the semen had been present or if it came from Moore. The prosecutor had not
asked the coroner to test the semen to see if it came from appellant.
b. Defense Evidence
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People v. Singleton
Dr. Kaushal Sharma, a forensic psychiatrist, examined appellant, reviewed documents pertaining to
this case, and testified as follows. Appellant twice tested positive for PCP in 1999. On the second
occasion, he was sent to a mental hospital after claiming to be God. Appellant's behavior ranged
from hostile to rational. Three months later, appellant, claiming he was God and that people were
trying to kill him, was sent to a mental hospital. He tested positive for PCP and was psychotic. In
March 2002, appellant tested positive for PCP and made similar delusional claims. According to
Sharma, appellant had experienced a "series of psychiatric problem[s] directly related to PCP, directly
related to very bizarre, . . . dangerous, . . . belligerent behavior directly related to paranoid, [sic]
thinking people are trying to do him harm . . . when PCP is positive." The murder book reflected that
appellant and Tsais tested positive for PCP. Sharma opined that, at the time of the crimes, appellant
was "was so impaired, he was so psychotic, he was so bizarre that his mind was not rationally
functioning at all."
According to Sharma, PCP sometimes attached itself to fatty tissue in the body and was stored there.
The stored PCP could later be released, causing recirculation of PCP in the blood system without
new ingestion of PCP. Sharma opined that the timing of recirculation was beyond appellant's control.
Appellant told Sharma that appellant did not recall the crimes or walking nude down the street.
Appellant did recall he smoked PCP on the night prior to the crime. Police reports indicated
appellant was both belligerent and peaceful in the emergency room after the present incident.
Appellant asked Sharma during direct examination if Sharma associated appellant's "musical
background" with what happened. Sharma later testified, "So [if] there is thought in your lyrics about
negative things, I think it is fair to say that somewhere in the back of his head, . . . he has hateful
thoughts. [¶] And I think if you have such hateful thoughts as Mr. Singleton had such hateful
thoughts and now he is kind of out of control because of the reasons I described, PCP and the other
recirculation and all that, what happens, what is in your head somewhere in the back, comes to the
front and you react to that." (Bracketed material added.)
According to Sharma, appellant did not understand the nature, consequences, and quality of what he
was doing. Sharma said this because appellant's behavior was bizarre, and the behavior had to be
evaluated in the context of appellant's history. Sharma had a name for this impairment: PCP
psychosis. PCP psychosis affected appellant's ability to think things out in a rational manner at the
time of the crimes.
Sharma testified that appellant was not aware of the obligation to act within the general body of laws
regulating society. Appellant suffered from "psychosis brought on by PCP," "acute and/or chronic
use," and "intoxication from PCP[.]" Sharma opined that appellant was having psychotic symptoms.
Sharma explained, "Keeping in mind every time Mr. Singleton uses PCP he does not become
psychotic. . . . [e]very so often he becomes psychotic[.]" Sharma opined that, at the time of the crimes,
appellant was mentally impaired as a result of PCP intoxication, reintoxication, and psychosis.
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People v. Singleton
During cross-examination, Sharma acknowledged he had testified during direct examination that
appellant suffered from a kind of mental disease or condition at the time of the incident. Sharma
testified "it was PCP psychosis and PCP re-intoxication[.]" The prosecutor asked Sharma if "it is the
PCP that causes him to act how he acts," and Sharma replied "PCP and its complications, that's my
inference based on what I have, yes." Appellant's "whole problem" was "the series of drug use and
sometime actually being high on the drug."
The parties stipulated, inter alia, that PCP and THC were found in blood and urine samples taken
from Tsais and appellant. Appellant's blood contained 10 nanograms of PCP. Appellant's urine
contained 8.6 nanograms of PCP. The parties also stipulated that Tsais's blood was found on
appellant.
c. Rebuttal Evidence
Los Angeles Police Detective Francis Hardiman, a drug recognition expert, testified that PCP stood
for phencyclidine hydrochloride. Hardiman had familiarized himself with the present case and had
spoken with Dr. Sahagun, appellant's treating physician at the jail ward of Los Angeles County USC
hospital. Hardiman opined, regarding the present incident, that appellant acted in an intentional and
deliberate manner. One fact supporting this opinion was that it was quite unlikely that, in a short
period of time, appellant went from the low level of PCP intoxication witnessed before the crime, to
an alleged intoxication peak during the crime, then back to a low level of intoxication.
Hardiman also testified that appellant engaged in deliberate goal-oriented behavior when he hinted
for Christopher to leave by stating that appellant was going to "get . . . some pussy." Appellant also
exhibited such behavior when, after leaving his shirt by the bathtub, he returned to the bathtub and
put the rest of his clothing there. Appellant showed no muscle problems and exhibited awareness
when he negotiated stairs, opened the gate, and walked on the sidewalk instead of the road.
Hardiman supported his opinion by referring to various goal-oriented behavior of appellant after his
detention by police, and by referring to Hardiman's conversation with Sahagun. Hardiman testified
that the sheriff's department did not consider suspects having less than five nanograms of PCP per
milliliter as having PCP in their blood. Los Angeles Police Department records showed that between
the years 1999 and 2003, the highest tested amount of PCP intoxication was 118 nanograms per
milliliter of blood and the average was 47 nanograms per milliliter. Appellant's level of intoxication,
as reflected in nanograms per milliliter, was the lowest of tested suspects since 1999.
According to Hardiman, reintoxication was a theory unsupported by medical literature or medical

proof. Hardiman conceded appellant had PCP in his blood and exhibited behavior consistent with
his being under the influence of PCP, but opined that the behavior was consistent with appellant
being under the influence of low doses of PCP.
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Hardiman testified during direct examination that in his experience as a "police officer and as a
detective," he used different factors to determine what someone intends to do. In the present case,
Hardiman testified he listened to a compact disc purportedly recorded by appellant.
Hardiman's testimony was interrupted by a bench conference. When direct examination resumed
after further proceedings, the prosecutor stated that Hardiman had been talking about "other factors
that [Hardiman] used to formulate his opinion regarding whether or not the defendant was able or
acting intentionally and deliberately." The prosecutor then asked what, if anything, about the song
led to Hardiman's opinion.
Hardiman then testified as follows. The song was about committing torture and murder for little, if
any, reason. The chorus alluded to Michael Myers, Jason Vorhees, and Freddy Krueger, fictional
characters from horror movies. The chorus referred to Charles Manson and Jeffrey Dahmer, murders
they committed, and that there were a million ways to die. The chorus also referred to torturing
people using knives and cutting instruments.
According to Hardiman, the song was in the first person, and a repeated verse was, "Ìf you wake up
in a puddle of blood, it is because I did it to ya.'" (Sic.) Another verse said, "Ì, being a wild animal,
being a lion, being a vampire and not being able to pass up fresh meat[.]'" (Sic.) Another verse talked
about slitting a postman's throat for delivering a welfare check late, and assaulting a pizza delivery
man because the pizza was delivered late. In the last verse, the singer said, "Ì will force another
person to play tug-of-war with barbed wire and set them on fire, and then put the fire out, take the
pus from the fire and put it into the person's mouth, break their jaw . . . .'" Hardiman testified that,
considering the song and the facts of the present case, "it appeared to [him] to be a blueprint of this
particular homicide of the way it occurred."
Hardiman testified that if he were investigating a car thief and went to the thief's house, and, while
there, found a diary in which the author idolized car thieves, praised a car theft movie as the author's
favorite, and said the author was a great car thief, "that would weigh toward my opinion as to
whether or not that person was, indeed, a car thief."
2. Sanity Phase
As stated above, after the jury found appellant guilty of counts one and two, the jury trial on the
sanity phase began. In defense, Ronald Siegel, a psychopharmacologist and expert in drug abuse,
testified, inter alia, that the effects of PCP ingestion on human behavior were unpredictable. PCP
was classified as a psychotomimetic, meaning PCP mimicked a naturally occurring psychotic
episode. Siegel opined that appellant was under the influence of PCP during the crimes and was in a
state of PCP psychosis such that his sense of reality was altered.
Barry Hirsch, a forensic psychologist and an expert in drug abuse, reviewed documents pertinent to
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People v. Singleton
this case, consulted with Siegel, and spoke with appellant. Hirsch wrote in his report that appellant's
"psychological state was a settled one in which the mental disorder [which] caused his incapacitation
was fixed, stable, and of long duration and was not solely dependent on the more immediate
digestion or duration of the actions of the drugs phencyclidine and cannabis[.]" Hirsch testified that
what he wrote meant that appellant "had been ingesting drugs for a number of years. He had a
documented previous psychiatric history. . . . he had a long-standing problem in his psychological
functioning associated with the use of phencyclidine and probably marijuana and that those
problems could erupt at times whether or not he was taking one or both of those substances."
Hirsch opined that appellant, when committing the present crimes, was acting out of psychotic rage
and had no perception he was killing someone. Appellant did not understand the nature and quality
of his acts, and lacked the capacity and ability to distinguish right and wrong, being in a state of
affective rage. Appellant's psychological state was settled, not transitory.
During Hirsch's cross-examination, the following occurred:
"Q: . . . . [¶] So when we talk about [appellant's] mental condition or his mental disease, we are talking
about the stuff that is caused by PCP and/or marijuana use from whatever age he started until the
date of the incident?
[¶] A: Correct."
Sharma testified that two factors about appellant's background were germane to Sharma's opinion
regarding appellant's sanity or insanity. One was appellant's long history of PCP use. The other was
appellant's past psychotic episodes. Sharma diagnosed appellant as being, at the time of the crimes,
"intoxicated on PCP and also suffering from PCP-induced psychosis."
According to Sharma, but for appellant's PCP usage over time, it was unlikely that he would have had
any mental problems. The cause of appellant's problems was PCP. Sharma indicated that PCP could
affect the brain's biochemistry "even if you don't do it anymore." A single use of PCP could cause
one to remain psychotic. Sharma opined that appellant was legally insane when he committed the
murder. Sharma opined this because he believed that long term PCP usage resulted in a psychotic
condition in appellant's brain, functioning, and behavior, such that appellant was unable to know his
actions were wrong. The trial court granted the People's motion for a directed verdict on the issue of
sanity, on the ground that the expert opinions that appellant was legally insane were based upon
appellant's voluntary intoxication with PCP.
CONTENTIONS
Appellant contends: (1) "The trial court erred prejudicially by refusing appellant's requested jury
instruction on the defense of involuntary intoxication," (2) "The trial court erred prejudicially by
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allowing a drug recognition expert to testify that appellant's rap lyrics demonstrated that he acted
intentionally and deliberately," (3) "Juror misconduct requires reversal of appellant's convictions," (4)
"The torture-murder and aggravated mayhem were part of a single, indivisible course of conduct; the
trial court therefore erred by imposing a consecutive life sentence in count two," (5) "The restitution
fine suspended pursuant to [Penal Code] section 1202.45 was an unauthorized sentence and must be
stricken," (6) "The trial court erred prejudicially by granting the prosecutor's motion for directed
verdict in the sanity phase," and (7) "The record establishes as a matter of law that appellant was
legally insane at the time of commission of the charged crimes." In a supplemental letter brief,
appellant contends that imposition of consecutive sentences on counts one and two violated Blakely
v. Washington.
DISCUSSION
1. The Trial Court Did Not Reversibly Err by Refusing to Instruct on Involuntary Intoxication
Appellant claims the trial court's refusal to give CALJIC No. 4.23 on involuntary intoxication was
error in light of Sharma's testimony that stored PCP later may be released, causing recirculation of
PCP in the blood system, leading to PCP reintoxication without a new ingestion of PCP. However,
for reasons discussed post, we conclude appellant's contention of reversible instructional error is
without merit, since appellant's ingestion of PCP was voluntary, his intoxication resulted from his
criminal negligence, and, therefore, he was voluntarily intoxicated at the time of the crimes and not
entitled to an involuntary intoxication instruction.
The court instructed the jury before jury argument, but did not instruct on involuntary intoxication
using CALJIC No. 4.23. That instruction reads: "Intoxication is involuntary when it is produced in a
person without [his] [her] willing and knowing use of intoxicating liquor, drugs or other substance
and without [his] [her] willing assumption of the risk of possible intoxication. [¶] Evidence of
involuntary intoxication should be considered in deciding whether the defendant had the necessary
[criminal intent] [mental state[s]] at the time the crime is alleged to have been committed."1 During
appellant's closing argument, appellant began reading CALJIC No. 4.23. The prosecutor objected
and, after discussions on the issue, the court refused to give the instruction on the ground that
appellant's consumption of PCP was voluntary.
To the extent appellant claims the court's refusal to give CALJIC No. 4.23 violated his constitutional
rights to due process and a fair trial, appellant waived the issue by failing to raise it below. (Cf.
People v. Saunders (1993) 5 Cal.4th 580, 589-590; People v. Benson (1990) 52 Cal.3d 754, 786-787, fn. 7;
People v. Rogers (1978) 21 Cal.3d 542, 548.)
As to the merits, in People v. Jackson (1989) 49 Cal.3d 1170 (Jackson), a defendant convicted of first
degree murder claimed to be a chronic PCP user who was under the influence of PCP at the time of
the offense after smoking cigarettes which he knew had been dipped in PCP. Evidence was presented
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at trial that, inter alia, the effects of PCP were unpredictable and varied with the individual, and a
chronic user, because of PCP stored in the system, might be "set off" with a slight amount of PCP.
(Jackson, supra, 49 Cal.3d at pp. 1180, 1182-1184.) The defendant contended on appeal that "an
involuntary intoxication instruction (CALJIC No. 4.23) should have been given." (Jackson, supra, 49
Cal.3d at p. 1194, italics in the original.)
Our Supreme Court stated, "[Defendant] asserts that [a doctor] testified that, as PCP is stored and
accumulates, `the intoxication becomes in some measure involuntary.' Defendant does not cite to the
record and a careful reading of the record reveals no testimony by [the doctor] to support defendant's
assertion. The process by which the PCP entered defendant's system was entirely voluntary. It is only
when the ingestion is involuntary that we refer to ìnvoluntary' intoxication. Here there is no
evidence that defendant's intoxicated state was other than completely voluntary." (Jackson, supra, 49
Cal.3d at p. 1194, italics added.)
In Jackson, there was evidence that chronic PCP use could "set off" a current user, thus, Jackson had
no occasion to consider whether chronic use alone could later affect a person under a reintoxication
theory and support the giving of an involuntary intoxication instruction. Nonetheless, Jackson, a case
in which there was evidence that the effects of PCP were unpredictable, concluded that the giving of
an involuntary intoxication instruction was not required because the defendant's ingestion of PCP
was voluntary. We note that the past and present ingestions of PCP by the defendant in Jackson were
voluntary.
In the present case, there was evidence that the effects of PCP are unpredictable. We conclude that,
even if evidence had been presented that appellant's intoxication was solely attributable to his
chronic PCP use, the court's refusal to give an involuntary intoxication instruction was proper
because appellant's past PCP ingestion was voluntary. (Cf. Jackson, supra, 49 Cal.3d at pp. 1184, 1194.)
Our conclusion is supported by People v. Velez (1985) 175 Cal.App.3d 785 (Velez), cited by the trial
court and respondent, and cited approvingly by our Supreme Court in People v. Gallego (1990) 52
Cal.3d 115, 183-184. In Velez, there was evidence that the defendant voluntarily ingested marijuana
given to him at a social gathering and, although he knew the substance was marijuana, he did not
know it contained PCP. (People v. Velez, supra, 175 Cal.App.3d at pp. 787, 789.) The Velez court
considered the issue of whether the defendant was entitled to instructions on the defense of
unconsciousness due to involuntary intoxication. (Velez, supra, 175 Cal.App.3d at p. 793.)
Velez concluded that when unconsciousness results from a defendant's criminally negligent2
intoxication, such intoxication is, as a matter of law, voluntary intoxication governed by Penal Code
section 22,3 and not involuntary or "no fault" intoxication governed by Penal Code section 26.4
Therefore, such unconsciousness does not operate as a complete defense to excuse otherwise
criminal conduct, and the defendant is not entitled to an involuntary intoxication instruction. (Velez,
supra, 175 Cal.App.3d at pp. 792-797.) The court concluded the defendant was criminally negligent
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because a reasonable person consuming illegal marijuana would not assume that the marijuana did
not contain PCP, and would not assume marijuana would produce a predictable narcotic effect. (Id.,
at p. 796.) If Jackson found dispositive the fact that ingestion was voluntary, Velez concluded that
voluntariness was a function of the defendant's culpability.
In the present case, evidence was presented that the effects of PCP were unpredictable, and that
appellant was a chronic PCP user who had suffered immediate and delayed effects from PCP use.
Sharma testified that stored PCP later may be released, causing recirculation of PCP in the blood
system, leading to PCP reintoxication without new ingestion of PCP.
Reintoxication is no new theory. In People v. Profit (1986) 183 Cal.App.3d 849, the court stated, "In
[People v. Presley (1985) 172 Cal.App.3d 1001], an expert witness testified in the trial court as to the
extremely dangerous nature of PCP. The witness stated that `PCP may store itself in the fat cells of
the user's body "forever." Consequently, many years following its ingestion, fat cells in the user's
body may continue to break off and reintroduce PCP into the blood system, causing intoxication.'
(Presley, supra, at p. 1003.)" (People v. Profit, supra, 183 Cal.App.3d at p. 870; see similar testimony by
Sharma in the case of In re Brown (1998) 17 Cal.4th 873, 888; see also In re Sixto (1989) 48 Cal.3d 1247,
1260.)
PCP is an illegal drug, therefore, neither appellant's intoxication nor any reintoxication resulting
from ingestion of PCP was "no-fault." We conclude a high risk of later reintoxication and harm,
absent new ingestion of PCP, is reasonably foreseeable from past or chronic use of PCP.
Accordingly, we also conclude that, to the extent any unconsciousness of appellant resulted from
illegal past or chronic use of PCP, the intoxication was caused by his criminal negligence and was
voluntary. Therefore, the court did not err by refusing to instruct on involuntary intoxication. (Velez,
supra, 175 Cal.App.3d at pp. 787, 792-796; see People v. Robertson, supra, 34 Cal.4th at p. 168.)5
None of the cases cited by appellant, or his argument, compels a contrary conclusion. This includes
In re Brown, supra, 17 Cal.4th 873, a case in which there was evidence that the defendant voluntarily
ingested marijuana and beer, knowing what those substances were, but someone, unbeknowst to the
defendant, put PCP in his beer, a legal substance. (In re Brown, supra, 17 Cal.4th at p. 1254.)
Moreover, appellant argues he "did not `willingly assume the risk' (see CALJIC No. 4.23) that PCP
would recirculate long after he discontinued use of the substance, causing a severe psychosis."
(Italics added) Therefore, he was entitled to an involuntary intoxication instruction. However,
appellant did willingly assume "the risk of possible intoxication" within the meaning of CALJIC No.
4.23, that is, he willingly assumed at least the risk of possible intoxication at the time he voluntarily
ingested PCP. Neither, Jackson, Velez, nor CALJIC No. 4.23 requires that appellant go further and
willingly assume the risk of future recirculation or any resulting psychosis. However, as mentioned,
any reintoxication of appellant from chronic PCP use was reasonably foreseeable.
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Finally, on the issue of prejudice, there was ample evidence from the testimony of Christopher,
Hardaway, Allen, police officers, and the criminalist that appellant engaged in multiple intentional
and purposive acts before and after the crime, which provided evidence that his actions during the
crimes were intentional and purposive. Hardiman opined that appellant's behavior was consistent
with his being under the influence of a low dosage of PCP, and that appellant acted in an intentional
and deliberate manner.
Moreover, the jury was instructed on first degree murder based on willful, deliberate, and
premeditated murder. The jury was also instructed on first degree murder based on torture, and was
instructed pursuant to CALJIC No. 8.24, that such murder required "willful, deliberate, and
premeditated intent to inflict extreme and prolonged pain upon a living human being for the purpose
of revenge, extortion, persuasion or for any sadistic purpose[.]" (Italics added.) The jury was also
instructed on aggravated mayhem, and was instructed pursuant to CALJIC No. 9.32, that that offense
required "specific intent permanently to disable, disfigure, or to deprive the other person" of a
specified part of the body, and "intent to vex, annoy, or injure[.]" (Italics added.) Having been so
instructed, the jury convicted appellant of first degree murder, and aggravated mayhem, with their
concomitant intentional and purposive mental states.The court instructed the jury, using CALJIC
No. 4.30, that the involuntary taking of intoxicating drugs resulting in unconsciousness was a
complete defense; the jury still convicted appellant. The court's instructions, including CALJIC No.
4.21.1, permitted the jury to relate voluntary intoxication to the specific mental states of murder and
aggravated mayhem. We conclude any error by the trial court in refusing to give CALJIC No. 4.23
was harmless. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S.
18, 24 [17 L.Ed.2d 705].)
2. The Court Did Not Prejudicially Err by Receiving Hardiman's Expert Opinion Testimony
We reject appellant's claim concerning the admissibility of expert opinion testimony, since the
witness qualified as an expert, the opinion was admissible rebuttal evidence and the lyrics were a
proper basis for the opinion, and the testimony was not otherwise excludable or prejudicial.
a. Hardiman Qualified As An Expert
1) Pertinent Facts
Hardiman testified, as a rebuttal witness, as follows. Hardiman had been a police officer for about
ten years and a detective a little over three years. He had been a drug recognition expert (DRE) since
1996. In order to qualify as a DRE, Hardiman had to "volunteer specific training that is certified by
the International Association of Chiefs of Police." The DRE program was a fairly intensive course of
study involving about 80 hours of training. The program required Hardiman to take a series of
written tests, and he was "taught to recognize persons who are under the influence of various illegal
substances and legal substances from alcohol, marijuana, cocaine, methamphetamine, PCP, heroin."
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People v. Singleton
(Sic.) Hardiman was taught the effects drugs actually had on the body, as well as their observable
effects. During the DRE program, Hardiman took classes and had experience with people who had
been under the influence of PCP.
Hardiman had a master's degree in criminal justice and did his master's thesis on the DRE program.
He had arrested, or had participated in the arrest of, over 150 persons under the influence of PCP. He
had written and circulated a paper within the DRE community on the topic of persons under the
influence of PCP. He also had interviewed about 50 PCP users concerning the effects of PCP, how it
made them feel, the effects it had on the mind, and how the persons functioned when they were
under its influence. Hardiman read, fairly often, articles and similar materials regarding PCP. He had
probably reviewed about 1500 articles regarding PCP during his 10 years as a police officer.
Hardiman testified without objection that he had seen a range of behavior among PCP users, from
someone "acting normally while under the influence of PCP all the way to the point where someone
is acting irrationally, violently in a crazy manner[.]"
Hardiman reviewed the police reports in the present case as well as some of the medical reports.
Hardiman spoke with Jankowski and arresting officers, and reviewed the defense psychiatrists'
evaluations. Hardiman also spoke with Sahagun, appellant's treating physician.
The prosecutor asked Hardiman during direct examination whether, "[b]ased on all that," Hardiman
was able to opine regarding appellant's behavior. Hardiman replied in the affirmative. Appellant
objected and a sidebar conference ensued. The prosecutor indicated he had intended to ask
Hardiman whether appellant was acting in an intentional and deliberate manner. Appellant urged,
inter alia, Hardiman was not qualified to answer the question because Hardiman was a DRE and not
a medical doctor, and he could not testify as to whether appellant was under the influence. Appellant
also urged intent was an issue for the jury.
The court stated "there has been a basic showing that indicates to me he has qualified to render an
opinion subject to the weight that the jury wants to give to it after they hear the opinion and they
hear the cross examination and so forth." Later, Hardiman opined at trial that appellant "acted in an
intentional, deliberate manner[.]" He further testified on the issue as reflected in our Factual
Summary, ante.
2) Analysis
Appellant initially assumes without conceding that a qualified expert could opine on the issue of, as
appellant puts it, "whether the rap lyrics demonstrated appellant's intent at the time of the killing[,]"
but appellant urges that "Hardiman's expertise in recognizing the symptoms of drug intoxication did
not qualify him to render an opinion whether appellant àcted intentionally and deliberately' when
he killed Tsais." (Italics added.) We disagree.
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"An expert is permitted to offer an opinion on à subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact.' (Evid. Code, § 801, subd. (a);
[citation].) And a particular expert is sufficiently qualified if `the witness has sufficient skill or
experience in the field so that his [or her] testimony would be likely to assist the jury in the search for
the truth.' [Citation.] A trial court's ruling permitting expert testimony is reviewed on appeal under
the deferential abuse of discretion standard. [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668,
766.) In particular, a trial court is given considerable latitude in determining the qualifications of an
expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown.
(People v. Davenport (1995) 11 Cal.4th 1171, 1205.)
There is no dispute Hardiman was a drug recognition expert trained to recognize persons under the
influence of various drugs, including PCP. In that connection, he testified without objection that he
had seen a wide range of behavior among PCP users, from someone "acting normally while under the
influence of PCP" to "someone . . . acting irrationally, violently in a crazy manner[.]" The court did
not abuse its discretion by concluding Hardiman was sufficiently qualified as an expert.
b. Hardiman's Expert Opinion Testimony Was Admissible, and the Rap Lyrics Were a Proper Basis
for That Opinion
Appellant claims "[w]hether rap lyrics supported the conclusion that appellant acted intentionally
and deliberately at the time of the homicide was not a proper subject of expert testimony[.]" In effect,
appellant claims here that no expert properly could opine on the issue of whether appellant acted
intentionally and deliberately, or rely on the rap lyrics as a basis for that opinion. We disagree.
1) The Subject Matter of the Expert Opinion Was Admissible
Penal Code section 28, subdivision (a), states, in relevant part, "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." However, Penal Code 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." (Italics added.)
The above statutes permit an expert to testify about the relationship between, on the one hand,
specified mental impairments and, on the other, a required criminal mental state(s), but, in the guilt
phase, prohibit such expert testimony from extending to whether the defendant in fact had or did not
have a required criminal mental state(s). Moreover, Penal Code section 29, has been judicially
construed to prohibit an expert, testifying about the relationship between voluntary intoxication and
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People v. Singleton
a required criminal mental state(s), from testifying as to whether the defendant in fact had or did not
have a required mental state(s). (People v. Rangel (1992) 11 Cal.App.4th 291, 300-303.) Penal Code
section 29, is effectively an exception to the general rule, set forth in Evidence Code section 805, that
"Testimony in the form of an opinion that is otherwise admissible is not objectionable because it
embraces the ultimate issue to be decided by the trier of fact." (See People v. Rangel, supra, 11
Cal.App.4th at pp. 302-303.)
Based only on the above authorities, Hardiman was arguably barred from testifying that appellant
acted intentionally and deliberately, since such testimony implied expert testimony as to whether
appellant had the required mental states of intent (e.g., intent to kill) and deliberation.
However, in People v. Steele (2002) 27 Cal.4th 1230, a pathologist in a murder case testified for the
People concerning similarities between the current killing and a previous murder committed by the
defendant. The pathologist made no reference during direct examination to the defendant's mental
state at the time of either killing. During cross-examination by the defendant, the pathologist opined
that the current killing might have been committed in a rage. On redirect, the pathologist opined the
current killing also could have been methodical and, over objection, testified that the fact that the
defendant committed both killings influenced the pathologist's opinion. (People v. Steele, supra, 27
Cal.4th at pp. 1246-1247.)
Our Supreme Court stated, "Defendant contends the court erred in permitting [the pathologist] to
testify, as defendant describes it, `to the effect that the [current] killing . . . was premeditated.' He
argues that this `whole line of testimony should have been excluded' because it was not the proper
subject of expert testimony under Evidence Code section 801, subdivision (a). . . . Defendant argues
that whether the similarity of the crimes permitted the inference that the second killing was
methodical was not the proper subject of expert testimony because the jury could draw any such
inference as well as an expert. [¶] The defense, however, not the prosecution, initiated this `whole
line of testimony.' On direct examination, the prosecutor did not elicit any testimony regarding the
mental state involved in either killing[.]" (Steele, supra, 27 Cal.4th at p. 1247.)
Steele, after commenting that the defendant was complaining "about the redirect examination"
which, according to Steele, "sought to neutralize that cross-examination and present the full
picture[,]" (Steele, supra, 27 Cal.4th at p. 1247), stated, "Once the defense elicited [the pathologist's]
opinion on cross-examination that the [current] killing might have been done in a rage, the
prosecution was entitled to elicit on redirect examination the further opinion that it might have also
been methodical." (Ibid.) The court saw "no error in permitting this very limited redirect examination
in response to the cross-examination." (Steele, supra, 27 Cal.4th at p. 1248, bracketed material added.)
The court later stated, "We do not believe, . . . that a party may ask relevant questions, then, when the
other side does not object, prevent all cross-examination (or redirect examination) responding to the
same point by successfully asserting that its own question was improper. As noted, the matter lies
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within the discretion of the trial court, which should strive to prevent unfairness to either side when
one side presents evidence on a point, then tries to prevent the other side from responding." (Steele,
supra, 27 Cal.4th at p. 1248.)6 The court concluded, "The prosecution was entitled to ask the witness
questions on the same point despite the failure to object to the defense question." (Steele, supra, 27
Cal.4th at p. 1249, fn. omitted; see generally, 3 Witkin, Cal. Evidence (4th ed. 2000), Presentation at
Trial, §§ 352-354, pp. 439-442.)
In the present case, appellant, by his defense, was first to present evidence of voluntary intoxication
to show he lacked the capacity to form a particular mental state(s), and was first to present expert
opinion testimony that, by reason of voluntary intoxication, appellant lacked the capacity to form a
mental state(s). That expert opinion testimony not only implicitly violated Penal Code section 29
(since if appellant lacked capacity, he lacked intent), but constituted testimony relating to diminished
capacity, a factually relevant, but legally abolished, defense.7 The People were thus entitled to present
Hardiman's testimony in rebuttal. Although this principle, referred to as "curative admissibility" (3
Witkin, Cal. Evidence (4th ed. 2000), Presentation at Trial, §§ 352-354, pp. 439-442) was applied in
Steele to permit the People to elicit certain redirect testimony, the principle also has been applied to
permit the People to elicit rebuttal evidence. (Id. at § 353, p. 441.)8 We conclude the subject matter of
Hardiman's testimony -- that appellant acted intentionally and deliberately -- was admissible under
the principle of curative admissibility.
2) Appellant's Rap Lyrics Were a Proper Basis of Expert Opinion
Appellant claims the rap lyrics were not a proper basis for Hardiman's opinion. We disagree and
believe Hardiman reasonably relied on the lyrics as being appellant's, and reasonably relied on them
as a basis for Hardiman's expert opinion.
a) Pertinent Facts
During rebuttal, Hardiman testified that in his experience as a police officer and detective, he used
different factors to determine what someone intends to do. Hardiman also testified that, in this case,
he listened to a compact disc purportedly recorded by appellant. Appellant objected, inter alia, that
Hardiman had no expertise in music interpretation, and the lyrics were not authenticated as
appellant's. The prosecutor replied Hardiman, as an expert and detective, was entitled to rely on
certain things, and the lyrics were a basis of Hardiman's opinion.
The court later stated it had "found based upon [Hardiman's] background and knowledge and what I
have heard from him that he does have an extraordinary knowledge compared to most people that I
encounter in the world in regard to the subject of PCP and its affects and its affect on criminality, its
affects on general behavior, and so forth." The court indicated Hardiman was entitled to provide a
basis for his opinion.
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People v. Singleton
The prosecutor urged the CD containing the lyrics was self-authenticating because it had "Big
Lurch's name on it" and "[t]here is no objection that this defendant is Big Lurch." (Sic.) The
prosecutor also stated that "[Attorney Milton Grimes, one of appellant's trial attorneys] gave [the CD]
to me representing this is the CD Big Lurch had recorded." The prosecutor represented he got the
CD directly from Grimes. The prosecutor also represented, "I said I want a CD. If I don't get it, I'm
going to subpoena the record company. [Grimes] provided it to me." The prosecutor further
represented that he could have a detective testify on the issue. The prosecutor stated, "So based on
representations by counsel through me to him and what is written on the actual CD, I think it is
self-evident." (Sic.) Grimes did not then deny that he made the representations attributed to him by
the prosecutor.
During an admissibility hearing, Hardiman testified he reviewed a CD in this case, and he

understood the CD had been produced or recorded by appellant. The lyrics helped Hardiman
formulate an opinion regarding whether appellant acted intentionally and deliberately. Hardiman
testified one of the songs essentially seemed to be a "blueprint of this actual homicide."
Grimes interrupted that no authentication evidence had been presented. The following then
occurred, "The Court: The information I had presented to me, and you didn't refute it, was that
counsel said he was going to subpoena a rap record of Mr. Singleton, and you were gracious enough
to provide him with the CD rather than him having to subpoena it, representing to him that it was
Mr. Singleton's CD. That is what I was told up here at sidebar. [¶] Now, you didn't say, Oh, no, that is
wrong. I didn't give it to him at all. He's making that up. So I assume that was accurate information."
Grimes did not deny the court's statements, but replied, "Of what, though? It still is -- there are three
or four different artists on this CD that was provided to counsel. Counsel still has a responsibility of
providing to this court the authenticity of these particular verses that he's attempting to get in."
Grimes conceded, "We provided the CD." The court indicated Hardiman was entitled to rely on
hearsay as the basis for his opinion, and was therefore entitled to rely on hearsay that "it is
[appellant's] voice and it is provided to him by the defense attorney[.]"
The following colloquy later occurred between the court and Attorney Marie Alex, another of
appellant's attorneys: "The Court: . . . the information that I have -- and presumably the expert has
and you heard us talking about it -- is that Mr. Grimes, in fact, turned it over to [the prosecutor] with
the statement . . . my client's rap music is on this disc. [¶] Now, is that statement unreliable or what?
[¶] Ms. Alex: That is not reliable. [¶] The Court: It is not reliable what Mr. Grimes says? [¶] Ms. Alex:
No, it is not reliable. [¶] The Court: Why not? [¶] Ms. Alex: It still has to be -- [¶] The Court: That is an
interesting argument, that counsel's statements are not reliable. That is novel, I will say that." The
court permitted Hardiman to testify at trial concerning the lyrics as reflected in the Factual
Summary, ante.
b) Analysis
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In his brief, appellant discusses, under separate headings, the topics "[w]hether rap lyrics supported
the conclusion that appellant acted intentionally and deliberately . . . ." and whether "[t]he lyrics were
[authenticated]." However, the People were not proffering the lyrics as documentary circumstantial
evidence of appellant's mental state(s), but as a basis for Hardiman's expert opinion testimony
regarding appellant's mental state(s). Accordingly, the real issue, as discussed post, is not
authentication, but whether Hardiman "reasonably relied" on the lyrics as being appellant's, and, if
so, whether Hardiman "reasonably relied" on them in forming his expert opinion.
Evidence Code section 801 provides, in relevant part: "[i]f a witness is testifying as an expert, his
testimony in the form of an opinion is limited to such an opinion as is: [¶] . . . [¶] (b) Based on matter
(including his special knowledge, skill, experience, training, and education) perceived by or
personally known to the witness or made known to him at or before the hearing, whether or not
admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion
upon the subject to which his testimony relates, unless an expert is precluded by law from using such
matter as a basis for his opinion." (Italics added.) Thus, expert testimony may be premised on
material that is not admitted into evidence as long as it is material of a type that is reasonably relied
upon by experts in the particular field in forming their opinions. (People v. Gardeley (1996) 14 Cal.4th
605, 618.) The determination of whether foundational requirements to the admissibility of expert
witness testimony have been met rests in the sound discretion of the trial court and, absent a
manifest abuse, the court's determination will not be disturbed on appeal. (People v. Ramos (1997) 15
Cal.4th 1133, 1175.)
As to the issue of whether Hardiman reasonably relied upon the lyrics as being appellant's, the
prosecutor, in Grimes's presence, represented that (1) appellant was named Big Lurch, (2) Grimes
gave the CD directly to the prosecutor, and (3) when Grimes did so, Grimes said, "this is the CD Big
Lurch had recorded."
Later, in the presence of Grimes and Alex, the court indicated that the information the court had was
that the prosecutor said he was going to subpoena a "rap record of Mr. Singleton," Grimes provided
"the CD" to the prosecutor, and Grimes said "it was [appellant's] CD." The court also indicated that
the information that the court, and presumably the expert, had, was that Grimes "turned it over to
[the prosecutor] with the statement . . . my client's rap music is on this disc." Neither Grimes nor
Alex denied that Grimes made the statements attributed to Grimes by the prosecutor and court. Alex
claimed only that the statements of Grimes (one of appellant's attorneys and an officer of the court)
were unreliable. During the admissibility hearing, Hardiman testified he reviewed a CD in this case,
and understood the CD had been produced or recorded by appellant.
Our Supreme Court has observed, "`When a person makes a statement in the presence of a party to
an action under circumstances that would normally call for a response if the statement were untrue,
the statement is admissible for the limited purpose of showing the party's reaction to it. [Citations.]
His silence, evasion, or equivocation may be considered as a tacit admission of the statements made
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People v. Singleton
in his presence.'" (People v. Riel (2000) 22 Cal.4th 1153, 1189, italics added.) Grimes was one of
appellant's attorneys. We conclude Grimes's failures to deny the above discussed representations of
the prosecutor and court amounted to judicial admissions by appellant that the rap lyrics were his.
(Cf. People v. Pijal (1973) 33 Cal.App.3d 682, 697; People v. Peters (1950) 96 Cal.App.2d 671, 677; see 1
Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 100, pp. 802-803.)9
As to whether Hardiman reasonably relied on appellant's rap lyrics, an expert is entitled to rely on a
defendant's statements as one of the bases for the expert's opinion. (People v. Gardeley, supra, 14
Cal.4th at p. 620 [expert opinion testimony based in part on conversations with defendants]; People v.
Stoll (1989) 49 Cal.3d 1136, 1140 [based in part on interview with defendant]; People v. Cruz (1980) 26
Cal.3d 233, 248 [same].) We note that, during the guilt phase and before Hardiman testified, Sharma,
during his defense testimony, discussed appellant's rap lyrics and related them to appellant's hateful
thoughts. We cannot conclude as a matter of law that other issues, e.g., when the lyrics relied on by
Hardiman were recorded, or the fact there may have been other explanations, poetic or otherwise, for
those lyrics, precluded an expert from reasonably relying upon them, and appellant was free to
explore these issues during cross-examination or by presenting evidence on them.
3) The Lyrics Were Not Inadmissible Hearsay, Propensity Evidence, or Excludable Under Evidence
Code Section 352
Appellant's remaining claims pertain to whether the lyrics were inadmissible hearsay, propensity
evidence, and whether the lyrics were excludable under Evidence Code section 352.
Appellant did not object below on the ground that the lyrics were inadmissible propensity evidence,
therefore, he waived the issue. (People v. Thomas (1992) 2 Cal.4th 489, 520; Evid. Code, § 353.)
Moreover, Evidence Code section 1101, subdivisions (a) and (b), state, in relevant part, "(a) . . .
evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to
prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the
admission of evidence that a person committed a[n] . . . act when relevant to prove some fact . . . other
than his or her disposition to commit such an act." The lyrics were offered, not as character evidence
to prove appellant's conduct on a specified occasion, but as a basis for Hardiman's expert opinion,
thus, they were not inadmissible propensity evidence and Hardiman's reliance on the lyrics did not
violate appellant's constitutional rights to due process.
The lyrics were not hearsay. First, "`[h]earsay evidence' is evidence of a statement that was made
other than by a witness while testifying at the hearing and that is offered to prove the truth of the
matter stated." (Evid. Code, § 1200.) The lyrics were not offered to prove the truth of the matters
stated in the lyrics, but were offered as a basis for expert opinion. Second, even if the lyrics were
hearsay, we conclude based on our analysis in part 2.b.2, ante, that the lyrics were appellant's,
therefore, they were admissible under the admissions exception to the hearsay rule. (Evid. Code, §
1220.) Third, even if the lyrics were inadmissible hearsay, Hardiman was entitled to rely on them
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People v. Singleton
since expert opinion can be based on reliable, albeit inadmissible, hearsay. (People v. Gardeley, supra,
14 Cal.4th at p. 618.)
As to the Evidence Code section 352 issue, appellant waived it by failing to object on that ground
below. (People v. Bolin (1998) 18 Cal.4th 297, 322.) Moreover, the lyrics were highly probative on the
issue of intent. The lyrics were no more inflammatory than the facts of the brutal killing of Tsais
themselves. Apart from whether impermissible detail of the song's lyrics was received in evidence,
the trial court did not prejudicially err in violation of Evidence Code section 352, by permitting
Hardiman to testify concerning the rap lyrics as a basis for his expert opinion.10
Finally, on the issue of whether the challenged testimony of Hardiman was prejudicial, before
Hardiman testified, Sharma testified concerning appellant's rap lyrics and behavior when Sharma
testified as a defense witness during the guilt phase that appellant, due to PCP, may have acted out
the hate he normally projected through his rap lyrics. Appellant's rap lyrics were only one of several
bases for Hardiman's expert opinion. Moreover, as mentioned, there was ample evidence that
appellant engaged in multiple intentional and purposive acts before, during, and after the crimes.
Hardiman opined that appellant's behavior was consistent with his being under the influence of a
low dosage of PCP. Further, leaving aside Hardiman's opinion that appellant acted intentionally and
deliberately, we note the jury, having been instructed on (1) first degree murder based on willful,
deliberate, and premeditated murder, (2) first degree murder with its special mental elements, and (3)
aggravated mayhem with its special mental elements, convicted appellant of first degree murder and
aggravated mayhem. We conclude any error in receiving Hardiman's expert opinion testimony that
appellant acted intentionally and deliberately, or in Hardiman's relying on appellant's rap lyrics as a
basis for that opinion, was not prejudicial.
3. The Trial Court Properly Denied Appellant's Motion for a New Trial Since the Motion Was
Supported by a Single Declaration Containing Inadmissible Hearsay
a. Pertinent Facts
On September 24, 2003, appellant filed a motion for a new trial urging, inter alia, juror misconduct.
The sole declaration supporting the motion was from Shawn Billups. The declaration states Billups
was over 18 years old, was not a party to the action, and had personal knowledge of the facts
contained in the declaration, but the declaration does not otherwise identify Billups or state how
Billups is connected to the present case except as indicated below.
Billups's declaration stated as follows. On or about September 23, 2003, Billups spoke with Carolyn
Stinson, Tsais's mother. Stinson told Billups the following. Three jurors contacted Stinson prior to
the date on which the verdicts were rendered. Two jurors approached Stinson and told her that they
were "`[s]orry for [Stinson's] loss.'" These two jurors frequently made specific efforts to smile at
Stinson, make eye contact with her, and speak to her every time the opportunity presented itself. The
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People v. Singleton
jurors felt especially comfortable contacting Stinson in the courthouse cafeteria, not within view of
the court.
The declaration also stated that Stinson told Billups the following. An alternate juror approached
Stinson while she was in the bathroom. After Stinson finished washing her hands, the alternate juror
asked Stinson whether a photograph which Stinson was wearing on her blouse depicted Stinson's
sister. Stinson replied that the photograph depicted her daughter. The alternate juror hugged Stinson
and stated, "`Justice will be served!'"
During the hearing on the motion for a new trial, the prosecutor commented, concerning the jury
misconduct issue, ". . . I really don't know where all this came from. The declaration that was filed
presents several questions of credibility, authentication. There is no one here nor has the defense
presented anyone to discuss any of these issues. So I do not think that that is an appropriate
argument at this stage." Appellant's counsel replied, "I think the declaration is sufficient, your
Honor. If counsel wants to examine the witness, he can." No further argument was presented on the
issue. The court later denied the motion for a new trial.
b. Analysis
Appellant claims the trial court abused its discretion by failing to conduct a hearing to determine
whether jurors were biased in favor of the prosecution. We disagree. The court conducted a hearing
on the motion for a new trial. Appellant failed to present substantial competent evidence of jury
misconduct in support of the motion, either with the motion itself or at the hearing on the motion.
He offered only a single declaration containing inadmissible hearsay (Stinson's alleged statements to
Billups). When the prosecutor urged that appellant's showing was insufficient and commented that
"no one [is] here nor has the defense presented anyone to discuss any of these issues[,]" appellant
urged the declaration was sufficient. He did not seek to present any additional evidence and did not
ask for a separate evidentiary hearing. The trial court did not abuse its discretion by denying
appellant's motion for a new trial without conducting further inquiry into the claim of juror
misconduct. (Cf. People v. Hayes (1999) 21 Cal.4th 1211, 1252-1261.)
4. Multiple Punishment for the Present Offenses Was Proper
As mentioned, appellant was sentenced to prison for life without the possibility of parole for first
degree murder (count one), with a consecutive term of life with the possibility of parole for
aggravated mayhem (count two). Appellant claims Penal Code section 654, barred such consecutive
sentencing. We reject the claim since the trial court reasonably could have concluded that appellant
committed the offenses with independent criminal objectives.
Penal Code section 205, states, "A person is guilty of aggravated mayhem when he or she unlawfully,
under circumstances manifesting extreme indifference to the physical or psychological well-being of
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another person, intentionally causes permanent disability or disfigurement of another human being
or deprives a human being of a limb, organ, or member of his or her body. For purposes of this
section, it is not necessary to prove an intent to kill." Aggravated mayhem requires specific intent to
cause a maiming injury, that is, specific intent to cause permanent disability or disfigurement.
(People v. Ferrell (1990) 218 Cal.App.3d 828, 832-834.) Penal Code section 187, subdivision (a), states,
in relevant part, "Murder is the unlawful killing of a human being, . . . with malice aforethought."
Appellant effectively concedes this is not a case in which two statutes punish a single "act" in the
ordinary sense of that term, and instead urges appellant engaged in an indivisible course of conduct.
However, there was substantial evidence that appellant inflicted numerous cuts, bruises, and
lacerations on Tsais, later cut a nine-inch wound in her chest, and then removed her lung. Thus, the
court reasonably could have concluded that events prior to the removal of Tsais's lung constituted
aggravated mayhem, and that, at that time, appellant intended to permanently disfigure, but not
murder, Tsais. We note appellant expressed surprise to police that he had killed her. The court also
reasonably could have concluded that appellant committed murder when he removed Tsais's lung
and, since the above mentioned maiming acts preceded the removal, that appellant did not commit
the murder to commit mayhem.
If Penal Code section 654, applied to a count, that section would bar, not merely consecutive
sentencing on that count, but any sentence on that count. There is no dispute that, if Penal Code
section 654, is inapplicable, consecutive sentencing on counts one and two was proper.
We conclude there was substantial evidence that, when committing counts one and two, appellant
entertained independent criminal objectives which were not merely incidental to each other, and the
trial court did not err in violation of Penal Code section 654, by imposing multiple punishment on
those counts. (Cf. People v. Perez (1979) 23 Cal.3d 545, 551; People v. Hutchins (2001) 90 Cal.App.4th
1308, 1312.) None of the cases cited by appellant compels a contrary conclusion.11
5. Imposition of a Penal Code Section 1202.45 Restitution Fine Was Error
The court imposed a $10,000 Penal Code section 1202.45 restitution fine. As respondent concedes,
however, imposition of that fine was error since a prison term of life without the possibility of parole
as to count one was a component of appellant's sentence. (People v. Oganesyan (1999) 70 Cal.App.4th
1178, 1181-1186.) We will modify the judgment accordingly.
6. The Court Did Not Prejudicially Err by Granting the People's Motion for a Directed Verdict, and
Appellant Was Not, as a Matter of Law, Insane
Appellant presents related contentions that the court prejudicially erred by granting the People's
motion for a directed verdict, and that the record established that, as a matter of law, appellant was
insane. We reject the contentions since, as discussed post, the court had authority to remove the
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People v. Singleton
insanity issue from the jury, appellant's alleged insanity resulted from his use of PCP, and, therefore,
an insanity defense was unavailable.
At the conclusion of appellant's presentation of evidence during the sanity phase of trial, the People
asked the court to "enter a directed verdict[]" on the ground there was no evidence on which the jury
legally could rely to find appellant insane. After argument, the court stated that the People had made
a motion for a directed verdict. Relying on Penal Code section 25.5, People v. Ceja (2003) 106
Cal.App.4th 1071, and People v. Robinson (1999) 72 Cal.App.4th 421, the trial court granted the
"motion [for a] directed verdict."
Appellant claims the trial court lacked authority to grant a directed verdict in favor of the People
during the sanity phase. We note that, notwithstanding the assertion in appellant's brief to the
contrary, the prosecutor did not make a motion "pursuant to [Penal Code] section 1118.1," but asked
for a directed verdict. Apart from whether a prosecutor can make a motion styled a "motion [for a]
directed verdict," we note that People v. Ceja, supra, held that trial courts retain inherent power to
remove the affirmative defense of insanity from the jury when there is no evidence to support it.
(People v. Ceja, supra, 106 Cal.App.4th at p. 1089.) Thus, leaving aside the issue of whether the trial
court properly granted a "motion [for a] directed verdict," we conclude the court had authority to
remove the defense of insanity from the jury based on insufficiency of the evidence. (People v. Ceja,
supra, 106 Cal.App.4th at pp. 1089, 1091.) People v. Hernandez (2000) 22 Cal.4th 512, cited by
appellant, does not, for reasons discussed in Ceja, compel a contrary conclusion.
Appellant also claims the dismissal of his insanity plea was error because there was sufficient
evidence that he was insane. He also claims he was legally insane as a matter of law. We reject the
claims. Penal Code section 25.5, states, in relevant part, "In any criminal proceeding in which a plea
of not guilty by reason of insanity is entered, this defense shall not be found by the trier of fact solely
on the basis of a personality or adjustment disorder, a seizure disorder, or an addiction to, or abuse
of, intoxicating substances." (Italics added.)
"[Penal Code] [s]section 25.5 provides that if an accused's insanity is caused solely by abuse of or
addiction to intoxicating substances, then the insanity defense is not available to him or her. This
statute makes no exception for brain damage or mental disorders caused solely by one's voluntary
substance abuse but which persists after the immediate effects of the intoxicant have dissipated.
Rather, it erects an absolute bar prohibiting use of one's voluntary ingestion of intoxicants as the sole
basis for an insanity defense, regardless [of] whether the substances caused organic damage or a
settled mental defect or disorder which persists after the immediate effects of the intoxicant have
worn off." (People v. Robinson, supra, 72 Cal.App.4th at p. 427, second and third italics added.)
In the present case, there was no evidence that any alleged insanity of appellant was caused by
anything other than "addiction to, or abuse of, intoxicating substances," that is, PCP intoxication,
alleged PCP reintoxication, and/or psychosis resulting from past PCP and/or marijuana use. The fact
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People v. Singleton
that one or more defense experts may have testified that (1) appellant was legally insane, (2) he
suffered from a psychosis, and/or (3) his psychotic behavior did not result from current or immediate
PCP use does not compel a contrary conclusion.12
There was insufficient evidence that appellant was insane, since any alleged insanity was caused by
"addiction to, or abuse of, intoxicating substances" within the meaning of Penal Code section 25.5,
therefore, the trial court did not err by removing the insanity defense from the jury. (Cf. People v.
Ceja, supra, 106 Cal.App.4th at pp. 1089-1091.) A fortiori, it cannot be said that, as a matter of law,
appellant was insane at the time of the offenses. 7. Imposition of Consecutive Sentences on Counts
One and Two Did Not Violate Blakely v. Washington.
Appellant, relying on Blakely v. Washington (2004) 542 U.S. ___, [159 L.Ed.2d 403], claims that, absent
jury findings supporting his consecutive sentences, his sentence violated due process. The issue
raised by appellant is pending before the California Supreme Court in People v. Black, review
granted July 28, 2004, S126182, People v. Sykes, review granted Oct. 20, 2004, S127529, and People v.
Vonner, review granted, Oct. 20, 2004, S127824. Pending resolution of the issue by our Supreme
Court, we reject appellant's claim and simply note that, in this state, every person who commits
multiple crimes knows that he or she is risking consecutive sentencing. While such a person has the
right to the exercise of the trial court's discretion, the person does not have a legal right to
concurrent sentencing, and as the Supreme Court said in Blakely, "that makes all the difference
insofar as judicial impingement upon the traditional role of the jury is concerned." (Blakely v.
Washington, supra, 542 U.S. at p. ___, [159 L.Ed.2d at p. 417].)
DISPOSITION
The judgment is modified by striking the Penal Code section 1202.45 restitution fine and, as
modified, the judgment is affirmed. The trial court is directed to forward to the Department of
Corrections an amended abstract of judgment reflecting the above modification.
We concur: KLEIN, P. J., CROSKEY, J.
1. The court did instruct the jury on unconscious acts using CALJIC No. 4.30. That instruction read, "A person who while
unconscious commits what would otherwise be a criminal act, is not guilty of a crime. [¶] This rule of law applies to
persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or
because of an attack of epilepsy, a blow on the head, the involuntary taking of drugs or the involuntary consumption of
intoxicating liquor, or any similar cause. [¶] Unconsciousness does not require that a person be incapable of movement.
[¶] Evidence has been received which may tend to show that the defendant was unconscious at the time and place of the
commission of the alleged crime for which [he] is here on trial. If, after a consideration of all the evidence, you have a
reasonable doubt that the defendant was conscious at the time the alleged crime was committed, [he] must be found not
guilty."
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People v. Singleton
2. Our Supreme Court has stated, ". . . `criminal negligence is the appropriate standard when the act is intrinsically
lawful . . . but warrants criminal liability because the surrounding circumstances present a high risk of serious injury.
Criminal negligence is not a "lesser state of mind"; it is a standard for determining when an act may be punished under
the penal law because it is such a departure from what would be the conduct of an ordinarily prudent or careful person
under the same circumstances.' [Citation.]" (People v. Robertson (2004) 34 Cal.4th 156, 168, italics added.)
3. Penal Code section 22, states, in relevant part, "(a) No act committed by a person while in a state of voluntary
intoxication is less criminal by reason of his or her having been in that condition. [¶] . . . [¶] (c) Voluntary intoxication
includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other
substance."
4. Penal Code section 26, paragraph four, states, "All persons are capable of committing crimes except those belonging to
the following classes: [¶] . . . [¶] Four - - Persons who committed the act charged without being conscious thereof."
5. Respondent, without citation to authority, claims appellant was not entitled to an involuntary intoxication instruction
because, even if there was evidence of involuntary intoxication, there was no substantial evidence that appellant's
intoxication was caused solely by involuntary intoxication. Respondent's claim is dubious but there is no need to decide it.
6. Steele suggested a different result might obtain where "a witness says something irrelevant - - for example, a testifying
defendant makes a broader than necessary assertion of innocence - - and the adverse party seeks to take advantage of that
statement by introducing otherwise irrelevant character evidence[.]" (Steele, supra, 27 Cal.4th at p. 1248, italics added.)
Steele later acknowledged cases dealing with "the problem of what to do when a witness `makes a statement on an
irrelevant matter,' and the adverse party seeks `to capitalize on the blunder or accident by offering impeaching evidence
on a collateral matter.' (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 352, pp. 439-440.)" (Steele, supra, 27
Cal.4th at p. 1248, italics added.) However, Steele stated, "We do not express a view on this question, for it is not
presented. The defense question, whether the killing may have been in a rage, was neither irrelevant nor a blunder." (Id.
at p. 1249.)
7. Penal Code section 22, subdivision (a), states, in relevant part, "Evidence of voluntary intoxication shall not be admitted
to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent,
knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act." (Italics
added.) See also Penal Code sections 25, subdivision (a), and 28, subdivision (b), abolishing the diminished capacity
defense.
8. We note the trial court in the present case stated, "If you're allowed to put on . . . an expert, to testify that [appellant]
didn't have the intent, then certainly [the People are] allowed in rebuttal to put on testimony that he did have the intent, .
. ."
9. In light of the above analysis, we need not consider whether other bases or representations by the prosecutor support
the conclusion that Hardiman reasonably relied on the lyrics. Moreover, even if the issue were whether the lyrics were
authenticated, Evidence Code section 1400, provides that "Authentication of a writing means (a) the introduction of
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People v. Singleton
evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the
establishment of such facts by any other means provided by law." (Italics added.) Appellant's judicial admission through
Grimes adequately established the requisite facts.
10. Although the issue in the present case involves the use of rap lyrics as a basis for expert opinion, we note that in
People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1374, a defendant's rap lyrics were admitted in a murder case, not as a
basis for expert opinion, but, independently, as circumstantial documentary evidence of the defendant's gang
membership, motive, and intent, and as against, inter alia, authentication, Evidence Code section 352, and propensity
evidence objections. We need not reach the issue of whether, in the present case, any trial court error in admitting the
lyrics as a basis for expert opinion was not prejudicial because the lyrics were independently admissible documentary
evidence.
11. In light of the above analysis, we need not decide whether there were additional reasons why Penal Code section 654,
was inapplicable.
12. Since Hardiman testified during the guilt phase but not during the sanity phase of trial, we need not consider his
testimony to support our analysis here. However, we note that Hardiman did not dispute that appellant was under the
influence of PCP at the time of the offense, but testified that the low dosage did not preclude him from acting
intentionally and deliberately. Notwithstanding appellant's suggestion to the contrary, that testimony does not support a
claim that appellant's alleged insanity was not caused solely on the basis of an addiction to, or abuse of, intoxicating
substances.
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People v.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

The following occurred during the coroner's direct examination:

According to Hardiman, reintoxication was a theory unsupported by medical literature or medical

During Hirsch's cross-examination, the following occurred:

a. Hardiman Qualified As An Expert

1) The Subject Matter of the Expert Opinion Was Admissible

2) Appellant's Rap Lyrics Were a Proper Basis of Expert Opinion

During an admissibility hearing, Hardiman testified he reviewed a CD in this case, and he

4. Multiple Punishment for the Present Offenses Was Proper

5. Imposition of a Penal Code Section 1202.45 Restitution Fine Was Error

We concur: KLEIN, P. J., CROSKEY, J.

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