Filed 6/10/16 P. v. Marroquin CA1/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION ONE


THE PEOPLE,

         Plaintiff and Respondent,
                                                                     A142311
v.

FROILAN MARROQUIN,                                                   (San Francisco County
                                                                     Super. Ct. No. SCN211373)
         Defendant and Appellant.

                                                INTRODUCTION
         A jury convicted defendant Froilan Marroquin of second degree murder. A
defense psychiatrist testified defendant suffered from posttraumatic stress disorder
(PTSD), alcoholism, and mild mental retardation, and as result of one or more of these
conditions, it is possible defendant was so intoxicated he was unconscious at the time the
victim was killed. On appeal, defendant argues the trial court committed reversible error
by unduly restricting the defense psychiatrist’s testimony about his mental state. We
disagree. He also requests we review the in camera transcripts of the prosecution’s
Pitchess motions (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) for Brady
material (Brady v. Maryland (1963) 373 U.S. 83 (Brady)). We deem that request waived.
We will affirm the judgment.
                               STATEMENT OF THE CASE
       The San Francisco District Attorney charged defendant Froilan Marroquin with
the murder of Nestor San Juan on September 11, 2008. (Pen. Code, § 187)1 Following
defense counsel’s declaration of doubt as to defendant’s competence to stand trial,
criminal proceedings were suspended. On February 13, 2014, a jury found defendant
presently competent to stand trial.
       Criminal proceedings resumed and, on June 3, 2014, a different jury acquitted
defendant of first degree murder but found him guilty of second degree murder. He was
sentenced to state prison for 15 years to life. This timely appeal follows.
                                 STATEMENT OF FACTS
       On September 11, 2008, San Francisco police discovered a trash bag containing
the remains of 73-year-old Nestor San Juan in a large dumpster located in the basement
of 520 Taylor Street, the apartment building where he lived. Cause of death was ligature
strangulation with blunt force trauma. Internal hemorrhaging indicated a significant
amount of force was applied to compress the neck. Twenty-seven bruises or contusions
on the chest, arms, both hands, legs, feet and back of the neck, as well as internal injuries
causing internal hemorrhaging and fractures of the ribs and spinal column, were inflicted
while Mr. San Juan was alive. The blunt force trauma alone could have caused death.
Mr. San Juan did not die of a heart attack.
       Discovery of the Body
       Arturo Romero and defendant met at a drug and alcohol program.2 They had been
friends for a year when defendant invited Arturo to his apartment for lunch. Romero had
to step over a bag to enter the first floor apartment. Defendant asked Romero to help him
take the bag down to the garbage can in the basement. Romero asked defendant why the

       1
           Unless otherwise indicated, all further statutory references are to the Penal Code.
       2
         Romero was unavailable to testify at trial, having been deported to Honduras.
Instead, his preliminary hearing testimony was read to the jury.

                                               2
bag was so heavy; defendant said it contained a vicious dog he killed. Romero became
alarmed and “really scared” when he realized his pants were soaked with blood that
smelled human. Romero stopped twice, but continued helping both times after defendant
cursed him and became enraged. Romero could feel “slim arms” inside the bag, but
decided it would not be wise to press defendant on what was in the bag. After they
returned to the apartment, defendant handed Romero a towel and told him to clean the
blood off the stairs. Instead, Romero went back to the basement to investigate the bag.
He put his hand inside the bag and felt a hand with a gold bracelet on the wrist. He went
back to the apartment, told defendant not to worry about lunch, and got “out of there, like
a rocket.” Romero ran to his therapist’s office.
       Romero arrived at his therapist’s office at 11:00 a.m. Romero was distraught,
crying uncontrollably, and had blood spattered all over his pants. Romero said he had
been asked to carry the body of a woman who had been murdered. The woman’s hand
had a ring on it and looked as if it had been skinned like a pig. The therapist called the
police, and accompanied the responding police officer and Romero to the basement of
defendant’s building.
       The basement steps were covered in blood. Officer Ciudad opened the lid of the
trash bin, saw a human hand, opened the trash bag with the help of another officer and
saw a deceased body. He called for backup. Romero then pointed out apartment 106 to
the officer.
       Police learned from neighbor Stephanie Johnson that the apartment belonged to
Nestor San Juan. He had lived there for over 20 years. Defendant visited him frequently.
       At 5:30 a.m. the previous day, September 10, Ms. Johnson noticed that Nestor’s
door was slightly ajar. When she tried to nudge the door open further to let Nestor know
his door was ajar, she was unable to do so because defendant was standing inside the
apartment right behind the door. He appeared flushed, his eyes were red and bloodshot,



                                             3
and he “stank of booze.” It was not unusual for defendant to smell of alcohol at 5:30
a.m., or “any time of day, actually.” He was not usually coherent when she saw him.
        Video Surveillance Evidence
        Video surveillance tapes were recovered from 520 Taylor Street. Excerpts
showing movements in the first floor hallway near apartment 106, from 10:52:33 p.m. on
September 9 through 12:16:15 p.m. on September 11, were played for the jury. On
September 9, 2008, Mr. San Juan entered his apartment for the last time at 11:13 p.m.
Defendant entered the apartment 10 minutes later, and left the apartment 15 minutes after
that.
        Defendant returned to the apartment shortly after midnight on September 10 and
left again at 2:45 a.m. Defendant returned to the apartment at 4:00 a.m. At 5:25 a.m.,
Johnson, the neighbor, approached Mr. San Juan’s doorway. Defendant left at 7:58 a.m.
and returned a few minutes later.
        At 6:25 p.m., defendant left the apartment and returned 20 minutes later. At 6:51
p.m., defendant attempted to drag a trash bag through the hallway but then abandoned the
effort and returned to the apartment. A few minutes later, he was wiping the hallway
floor with a towel.
        On September 11, 2008, at 11:00 a.m., defendant and Romero dragged a large
plastic bag down the hallway to the basement.
        Additional Forensic Evidence
        There were no signs of forced entry into Mr. San Juan’s apartment. Defendant’s
fingerprints were found there, as well as on the garbage bag containing the body. There
was blood on the floor, floorboard, door frame and wall near the doorframe of Mr. San
Juan’s apartment, and a blood trail through the entryway. Some of the blood looked as if
it had been wiped, or had some object dragged through it. DNA testing confirmed
Mr. San Juan’s blood was on the doorway between the living room and bedroom and on
the hallway floor. A swab from the kitchen floor contained defendant’s DNA, although it

                                             4
was not blood. A garbage bag filled with 11 beer bottles was found in the kitchen. Eight
more beer bottles and cans were found inside a Rite Aid bag located inside the bag
containing the body. Defendant’s fingerprints were found on three of the beer bottles and
one beer can in the Rite Aid bag.
       Defendant was arrested at his brother’s house on September 12, 2008. Police
found a pint of vodka on his person, and Mr. San Juan’s social security card in his wallet.
Defendant’s Statement to Police
       Inspectors Cagney, Gaynor and Casillas questioned defendant later that night for
over an hour.3 Defendant told police he met Nestor San Juan, his one friend, in 1994
when they both worked at the MacArthur Park restaurant, he as a cook and Nestor as
bookkeeper. He said he had no fights or arguments with Nestor, who was a very good
person, a very nice guy; they were very close. At one time he lived with Nestor at 520
Taylor Street. For the first half hour of the interview defendant maintained he had spent
every night at his brother’s house, including the previous night and the night before that,
since separating from his wife three months earlier. He said he had last seen Nestor one
month earlier. Defendant professed not to know why the video camera inside 520 Taylor
would have a picture of him the previous night.
       The police eventually told defendant Nestor was dead, they had found his body,
and they had defendant on video carrying a plastic bag with another person and putting it
in a garbage can. Defendant said he had no idea what happened to Nestor. He denied
knowing if Nestor had an accident. When asked if Nestor had a heart attack or got sick,
defendant stated Nestor said he was sick, and had a heart problem, but defendant still
maintained he was not at Nestor’s place the day before. When Cagney pressed him

       3
         The first 25 minutes of the interview were recorded in both audio and visual
modes. At that point, the battery for the video recorder drained, and the remaining hour
and 16 minutes of the interrogation were recorded in audio only. Both segments of the
recordings were played for the jury. The jury was also provided with a verbatim
transcript of the entire interrogation.

                                             5
further, defendant admitted he saw Nestor have a heart attack. When Cagney suggested
he got scared, defendant said, “Yeah, I got so scared.” Defendant maintained this
happened two days earlier, not the day before. They were eating, Nestor said he felt bad,
he started shaking and then he fell down in the living room. Defendant did not call 911
because he was so scared. Nestor did not knock over any furniture. Defendant thought
Nestor had blood coming from his nose or mouth. Defendant waited for Nestor to wake
up for “[m]aybe one hour” and then left the apartment. Defendant demonstrated Nestor’s
posture on the ground: a little bit on the side, holding his heart. Nestor had no clothes on
because he had just stepped out of the shower. Defendant insisted repeatedly this
occurred on Wednesday, and any videos that showed him at Nestor’s the day before must
be wrong. After leaving Nestor’s place, defendant went to his brother’s house and spent
Thursday with him.
       At this point, the police told defendant Nestor had not died of a heart attack;
something else happened and defendant knew what it was. Defendant said he had no idea
what happened. Cagney then posited that Nestor “has a heart attack you think
Wednesday and then Thursday you go back you don’t know what to do so you, you think
maybe to get him out of the apartment so you got to take him downstairs. You put him in
the bag, you take him downstairs cause you don’t want Nestor laying on the floor.
Nestor’s dead.” Gaynor asked, “Is that what happened?” Defendant said he had no idea.
       Next, the police told defendant he was a good man, but he needed “to tell the truth
about what happened” or his wife and daughter and brother would think he was a bad
man who killed for no reason. Defendant said he put Nestor in the trash can on
Wednesday because he was so scared he panicked. He found the garbage bag inside the
place. He went outside; he called an old guy from Honduras he had known for a year.
Defendant also said he saw the man on the street and said to him, “Oh, can you help me
please, you know?” He told his friend to help him take out the trash. He felt so bad he
did not know what to say. He did not tell his friend what was in the bag. They carried

                                             6
the bag to the trash can. He insisted again this occurred on Wednesday, not the previous
day.
       Cagney reiterated Nestor had a heart attack and asked what time defendant took
Nestor downstairs. Defendant said he did not remember what time it was, but repeated
that Nestor had no clothes on. He had just come out from the shower and was shaking.
He asked defendant to help him. Three or four months earlier, Nestor had been shaking
and could not stand; that time defendant had taken him to Kaiser on Geary. This time,
Nestor “was completely out.” Defendant waited an hour, tried to wake him. Defendant
was so nervous and shaking he called his Honduran friend from his cell phone.
       Asked if his memory for what happened was very good “right now,” defendant
said it was, but there were too many questions and he got lost. Defendant repeatedly told
the police after this point, “You can arrest me.” Asked if Nestor did something to make
defendant mad, defendant said, “No, no, no. I, I don’t know.” He said repeatedly he had
no idea what happened to Nestor, other than he had a heart attack. Told by police the
videotape showed Nestor was not naked in the trash bag, but had a shirt on, defendant
said, “No,” and he did not know how that happened.
       All he did was shake Nestor when he did not wake up; he thought Nestor was dead
and called his friend, and they put the body downstairs. He put the body in the bag; his
friend was in the kitchen and did not know. At first, defendant said he told his friend it
was trash; then defendant admitted he told his friend it was a dog, because the friend saw
“a little black, coming out . . .” and asked what it was. Nestor was already in the shower
when defendant arrived on Wednesday and let himself into Nestor’s apartment with a
key. They did not talk because Nestor was already sick and shaking. There was no fight
or argument.
       When police told defendant that “one mistake . . . doesn’t make you a bad person,”
and he made a big one, defendant admitted he knew he made a “big mistake.” When
pressed about what the mistake was, he said, “ I don’t know, you say I made a big

                                             7
mistake. Okay.” He did not call 911 because he was scared, and he did not take Nestor
to the hospital like he did the last time because the last time, Nestor could say, “Oh, I feel
bad.” This time, Nestor could not talk. To the end of the interrogation, defendant
maintained that all he did was put Nestor’s body in a bag and take him downstairs. He
had “no idea” what happened to Nestor.
Defense Case
       The parties stipulated: “The Salvadoran civil war was a conflict between the
military-led government of El Salvador and the Farabundo Martí National Liberation
Front, F.M.L.N., a collation of five left-wing militias. [¶] The civil war lasted for twelve
years, 1980 through 1992, and violence was seen from both sides. [¶] An unknown
number of people disappeared during the conflict. And the U.N. reports that more than
75,000 were killed, including civilians. [¶] Both military and civilian personnel were
targeted by both sides of the conflict.”
       María Marroquin, defendant’s older sister, testified about defendant’s childhood in
El Salvador during the war. They lived in a small village with no school. Their house
had no electricity or running water, and they had very little food. Their father worked in
the sugar cane fields. He often beat defendant with a whip. Sometimes, his father would
beat him so severely the neighbors would tell him to stop.
       Defendant witnessed many killings by guerrillas, including the killing of an entire
family of eight people. His father’s job was to bury the dead, and defendant often helped
him. Death squads often came into their village, and defendant’s father was taken away
more than once. Defendant would become more upset by this than his siblings, yelling,
“Don’t kill him.” Defendant’s father would be beaten before returning to the village.
       Defendant often climbed trees to avoid violence. He fell from the trees several
times, losing consciousness for several hours. He also lost consciousness after falling off
a pig and a horse. Defendant left El Salvador for the United States when he was a
teenager, after the war ended.

                                              8
       Psychiatrist Laura Davies testified as a defense expert on PTSD, alcoholism and
its effects on the human brain, and the effects of trauma on the human brain. In 2011, she
was retained to evaluate defendant in the areas of neuropsychology, PTSD and the effects
of alcohol on behavior and on consciousness. Since 2011, Dr. Davies has interviewed
defendant in Spanish four times, for a total of eight hours while he was in custody. She
also spoke to defendant’s sister Maria and to Mr. San Juan’s grandnephew, Chris
Sarmiento, who knew defendant before 2008. She also reviewed records of defendant’s
prior hospitalizations, evaluations of defendant by other mental health professionals,
including Drs. Jeko and French, police reports and defendant’s statement to the police,
and administered several tests.
       Defendant told her he fell from a tree, a horse and a pig. He recalled once he fell
down, lost consciousness and a lady took him home. He also told her he lost his job at
MacArthur Park restaurant multiple times because of his drinking. She wrote a report of
her findings dated April 7, 2014.
       Dr. Davies also reviewed a report by Dr. Weinstein, a psychologist, who gave
defendant an intelligence quotient (IQ) test. Based on that testing, defendant’s IQ
measured between 61 and 71, which is significantly below average. Defendant’s history
of losing consciousness as a child would certainly have contributed to his cognitive
impairments. For people with IQs below 85, it is harder to learn and understand the
consequences of their actions. “[L]ife is not as clear as it is for those of us with average
intelligence.”
       Dr. Davies diagnosed defendant with PTSD based on his symptoms, her
evaluation of him, testing, medical records she reviewed, and her discussions with
defendant’s sister and Mr. San Juan’s grandnephew. Her opinion encompassed what she
had learned about defendant growing up in El Salvador and the parental beatings he
endured. Defendant exhibited all of the symptoms of PTSD, including avoidance of
talking about the trauma, intrusive and intense memories of the trauma in flashbacks and

                                              9
nightmares, negative cognitions such as very low self-esteem and feeling very guilty
about his failings as a father, and hypervigilance, manifested by sleeping in a closet for
personal safety reasons. Defendant also has a lot of somatic problems, such as headaches
and stomachaches, feeling isolated and alone, even when he is with other people. Finally,
he has a history of hospitalization for hearing voices call his name, a very specific
phenomenon in PTSD. Dr. Davies noted defendant’s prior eight-day hospitalization
followed by a week-long stay at an acute diversion clinic was key to her diagnoses of
PTSD and alcohol abuse.
       In Dr. Davies’ opinion, based on the tests she administered, her eight hours of
interviews and the corroboration of things he told her, defendant was not malingering or
feigning low I.Q.
       In connection with PTSD, dissociation arises when a person feels completely
separated from reality and is not mentally connected to where he is physically. The
phenomenon of dissociation has been well documented for over 115 years. After
consuming alcohol, people can have complete blackouts where they remember nothing,
or fragmentary blackouts where they can be cued to remember certain things. “[P]eople
can do a lot of stuff and not remember it.” They can do very complex activities, and
“[n]ot only are they not aware that they’re doing it, but they’re not able to lay down
memories.” Dr. Davies answered “[y]es” when asked if a person diagnosed with PTSD
could be in a dissociative state when he moved a body by himself, as defendant did in the
videotape.
       By multiple reports, defendant also has a long and well-documented history of
intractable alcohol abuse. Alcohol prevents the growth of neurons and neuroconnections
and it also destroys the neural connections that have already been developed. According
to both defendant and his sister, defendant began using alcohol at age 11. Alcohol abuse
during the formative years also impairs brain function. Alcohol prevents some people
from encoding memories when they drink over time.

                                             10
       In Dr. Davies’ opinion, PTSD sufferers will self-medicate with drugs or alcohol to
avoid experiencing intrusive memories, and feeling anxious, guilty, and hypervigilant.
They will do anything to dull those sensations.
       Stephanie Johnson’s observations of defendant in the early morning hours of
September 10, 2008, as well as her comment that defendant was often not “coherent” are
consistent with someone who was acutely intoxicated. This evidence bolstered Davies’
opinion, based on multiple sources and medical records, that defendant “was not a casual
drunk, but . . . drank, . . . as part of his PTSD, . . . to become unaware. He drank to get
drunk. He wouldn’t drink one or two drinks; he would drink and drink and drink and
drink.”
       Dr. Davies testified that there are “numerous, numerous cases in the literature of
people becoming unconscious from drinking too much alcohol, [yet] performing complex
tasks, seeming to be conscious, interacting with people, answering questions, and having
absolutely no recollection the next day.” Based on all of the information that she
reviewed, Dr. Davies opined it is definitely possible defendant was unconscious, in a
blacked out stage, the night Nestor San Juan was killed. She also opined defendant does
not remember how Mr. San Juan was killed. Defendant’s PTSD, alcohol abuse and
cognitive deficits, in combination, affected defendant’s behavior and may have caused
him to be unconscious on September 10 and 11, 2008.
       People’s Rebuttal Evidence
       Psychologist Lisa Jeko testified as an expert in clinical and forensic psychology
and PTSD. Dr. Jeko was appointed by the court to assess defendant’s then present
mental condition in 2012 and 2013. She spoke to defendant twice and wrote two reports.
Defendant told her he “drank all the time.” He sometimes also used cocaine and
marijuana. He drank alcohol to tranquilize himself and alleviate his symptoms of anxiety
and stress. Defendant denied he blacked out from drinking around the general time frame
of “the incident” in a “global” sense.

                                             11
       Dr. Jeko described PTSD and dissociation. She doubted she would make a PTSD
diagnosis in this case. Contrary to Dr. Davies, Dr. Jeko opined that a person in a
dissociative state can remember what happened while he or she was in this state, even
though it may take some prompting. She believed it was possible to engage in complex
or goal-directed behaviors, and be aware of one’s actions or the nature of those actions,
while in a dissociated state. Dr. Jeko testified it was possible––because anything is
possible––that defendant was in an unconscious state at the time Mr. San Juan was killed.
However, she believed there was not enough information to make a determination one
way or the other. She did think there was enough information to conclude defendant was
under the influence of alcohol at the time of the offense: he admitted to her he had been
drinking, and there was a witness who smelled alcohol. There is a level of intoxication
where people are ambulatory but unaware of their behavior. However, it was also
possible to be aware at the time and yet not be able to recall the events later. The fact
that defendant wiped up the blood indicated defendant was oriented as to time, place and
circumstances and increased the possibility of being in a conscious state.
       Psychologist Jonathan French testified as an expert in psychology. He interviewed
defendant once, in 2012, but recently reviewed his materials with an eye towards
determining defendant’s potential mental state in September 2008. To Dr. French,
“unconscious begins to mean that you are unable to engage in adaptive behavior; so that
if there’s some need to change your behavior in the middle of being unconscious, you’re
not going to be able to do that because you’re not sufficiently aware of your surroundings
to do that.” However, a person in an unconscious state can do very simple, repetitive
acts, “[b]ut their awareness of those acts may be limited or practically nonexistent.” A
“blackout” is a memory phenomenon that sheds no light on the person’s state of mind. A
seasoned drinker with liver dysfunction may be capable of conscious, organized behavior
and may not seem intoxicated, but may not remember what happened the next day. “You
need to have more information than just the fact that somebody said, ‘I don’t remember,’

                                             12
in order to begin opining on their mental state at the time they were under the influence.”
A person capable of sustained goal-oriented behavior “could not be considered
unconscious.”
        In Dr. French’s opinion, it was unlikely yet possible that defendant was so drunk
that he was unconscious when he moved Mr. San Juan’s body from the apartment.
Dr. French opined that cleaning up the blood immediately afterwards, “does not sound
unconscious . . . .” Dr. French opined that the sequence of events starting with defendant
calling Romero to help him dispose of the body, and everything else defendant did with
Romero to remove the body, did not indicate to French that defendant “could have been
unconscious at that time” because the behavior was “too complex, too focused upon an
objective . . . .”
        Prefacing his remarks with the observation there were no witnesses to Mr. San
Juan’s death except the victim and defendant, Dr. French stated the traumatic injuries to
Mr. San Juan, followed by strangulation by ligature, gave Dr. French “some hesitations
about believing that [defendant] was entirely unconscious.” Because all the violence was
focused on the victim and the apartment was not trashed, there was nothing consistent
with “somebody in an unconscious state . . . flailing about and hitting anything.” Also,
the change in method of killing from a less lethal method of sustained beating to the more
lethal method of ligature, aided Dr. French’s conclusion. “This is somewhat speculative,
but changing the modality suggests to me that there was some awareness of what was
going on.”
        As for dissociation, Dr. French believed the phenomenon exists, but “there’s a lot
of fluctuating opinion and debate in the professional community about [it].” Dr. French
saw dissociation as a way of stepping aside oneself during a traumatic event such as rape.
It “doesn’t mean they can’t recall it . . . [or] that they become somebody else.” He
thought it was “tricky” and “a very complex issue,” but likely a person in a state of



                                             13
dissociation would not feel the emotional impact of what was going on around him, but
would be aware of his actions and making conscious choices.
       PTSD is “the opposite of forgetting or not being able to recall.” It is not being
able to get away from a traumatic experience: inability to escape the recollection of what
happened, nightmares, and intrusive recollections. In his experience, when persons with
PTSD are faced with a situation that reminds them of the trauma, they could dissociate,
but almost invariably the dissociation is brief, provokes feelings of helplessness,
confusion, uncertainty and maybe a little fear which, to Dr. French’s way of thinking, is
the opposite of provoking a violent and focused reaction.
                                       DISCUSSION
I.     Restrictions on Expert Testimony
       Defendant argues the trial court abused its discretion and violated his due process
and Sixth Amendment rights to present a mental state defense through expert testimony
by placing unwarranted restrictions on Dr. Davies’ expert testimony. (U.S. Const., 5th,
6th & 14th Amends., People v. San Nicolas (2004) 34 Cal.4th 614, 661.) We review the
trial court’s ruling for abuse of discretion. (Id. at p. 663; § 28, subd. (d); People v. Cortes
(2011) 192 Cal.App.4th 873, 908 (Cortes).)
       The Motions
       The prosecutor moved to limit Dr. Davies’ testimony about the effect of
intoxication and PTSD on defendant’s mental state at the time of the killing. He argued
that sections 28 and 29 prohibit the defense from eliciting “testimony that in any way
indicates the defendant’s mental illness interfered with his having the required mental
state at the time of the crime.” He also argued the court should not permit Dr. Davies to
testify about “[s]pecific instances of Defendant experiencing some childhood trauma, and
any of the other self-serving statements made by Defendant,” such as his statements to
police and to Dr. Davies, because to do so would permit the “back-dooring by the defense



                                              14
through their experts” of otherwise inadmissible hearsay. He requested an Evidence
Code section 402 hearing prior to any testimony by Dr. Davies.
       The defense moved to admit expert opinion testimony from Dr. Davies that
defendant suffered from PTSD, dissociation, alcoholism and substance abuse at the time
of the killing. Her opinions and diagnoses were based in part on what she knew about
defendant’s early life, and his statements to her. The defense motion stated Dr. Davies
was prepared to testify “that she believes it is quite likely that Marroquin was
unconscious during the alleged incident” (italics added) and that “an unconscious person
could not form a rationale [sic] state from which to make logical decisions, aware of the
consequences, and would regress to overlearned behaviors from formative years.”
However, she would not be asked to opine whether defendant had the capacity to form, or
did form, malice aforethought.
       Dr. Davies’ Testimony at the Evidence Code Section 402 Hearing
       Dr. Davies testified she is fluent in Spanish and interviewed defendant four times
without an interpreter in 2011. She also reviewed various medical records, including
evaluations by Drs. French and Jeko, and wrote a report. 4 She reviewed a transcript and
videotape of defendant’s statement to police on September 11, 2008, and used it in
arriving at her opinions in this case. She also reviewed the surveillance tapes of the first
floor hallway of 520 Taylor Street from September 9 through September 10, 2008.
       Dr. Davies diagnosed defendant with PTSD, based on the eight hours she spent
with him, her experience in PTSD, the specific questions she asked him, his symptoms,
her conversations with defendant’s sister about the symptoms she has observed in him,




       4
        In her report, Dr. Davies states she interviewed defendant at the San Francisco
County Jail on August 22, 2011, for two hours, August 25, 2011, for two hours, October
17, 2011, for three hours, and July 2, 2013, for one hour.

                                             15
and medical records.5 Defendant’s symptoms include nightmares since childhood,
lifelong hypervigilance, passive suicidal ideation, poor sleep due to anxiety, somatic
problems such as headaches and stomachaches, feelings of isolation from others even
when they are right next to him, and intrusive memories of the war in El Salvador.
       Defendant went through multiple traumas, including the civil war in El Salvador
and abuse by his father. His father had defendant assist in burying the bodies. When he
was five or six, defendant saw bodies hanging from trees. Defendant was burned in a
sugar cane fire, and regularly kicked and beaten by his father. In Dr. Davies’ opinion,
these experiences could cause someone to have PTSD.
       Dr. Davies described dissociation in relation to PTSD as “a very specific form of
what lay people call checking out. It’s when one is overwhelmed by memories of the
trauma. And one can either feel as if they are apart from oneself, looking at oneself from
above, or just not in the situation at all. [¶] At that point in time, the person is not laying
down new memories. They are not engaged in the present. They are unable to engage
their rational mind to make decisions, to think about consequences, to use their cognitive
faculties, whatever they are. Some people might call them on autopilot. [¶] And
significantly, . . . other people might not notice it. You might be looking at them from
the outside and you might say, ‘Hey, you know, things are okay,’ but the person is unable
to remember . . . what happened. And internally that person is suffering incredibly. They
are back inside that trauma that they had gone through.” Dissociation can be triggered by




       5
         Defendant was hospitalized in 2003 at San Francisco General Hospital and
treated by a bilingual psychiatrist, Dr. Read. At the time, defendant was terrified that
gangs were out to get him and called 911. He was diagnosed with psychosis and bipolar
disorder and was involuntarily hospitalized and medicated for seven to 10 days. After
discharge from the hospital in March 2003, defendant went to La Posada Acute Diversion
Unit, a halfway house for psychiatric patients. La Posada noted PTSD on the discharge
summary.

                                              16
memories of the prior trauma. It can be a smell, a phrase, a visual cue or a certain
situation, and people are more vulnerable to dissociation when they are intoxicated.
       Dr. Davies also diagnosed defendant with polysubstance abuse in full remission
while in custody. Dr. Davies concluded that in 2008 immediately before he went to jail,
defendant “was abusing alcohol in a . . . really egregious manner. He was drinking all the
time, whenever he had money, and in a way so that he could black out, and in a way that
left him unable to fulfill his roles, in a way that people were worried about him, that left
him feeling guilty, that made him––once he started drinking, he was out of control. He
couldn’t stop drinking.” She based her opinion on her interviews with defendant and on
medical records. Defendant told her he had been drinking alcohol since he was 11 years
old; neurodevelopmentally, drinking before the age of 20 “really affects your brain.” Ten
months after his arrest, in July 2009, defendant told Jail Psych Services he had been
consuming two pints of alcohol daily for 21 years, as well as regular use of cocaine for
the last five years, and that he last used both cocaine and alcohol on the night before his
arrest. Forensic and crime scene evidence supported her conclusion: approximately 52
12-ounce bottles of beer were found in the house and the garbage bin; the toxicology
report showed the victim had no alcohol in his blood.
       Dr. Davies further opined a person can become unconscious from drinking too
much alcohol, and a person “can . . . be unconscious but still . . . physically active,
walking around, interacting.” Defendant told Dr. Davies about his memories of his
interactions with Nestor between September 9 and September 11, 2008. Defendant said
he came home late. He had been drinking and using cocaine. He was confused because
there was a vase by the door, which was unusual. He went into the bathroom while
Nestor was in the bath and began chatting with him. Reading from her report, Dr. Davies
testified: “ ‘He came home on the 11th.’ [¶] . . . [¶] And after he was talking to him, he
moved his head because he didn’t respond. And then he said, ‘My mind went ugly.’
And––and at that point, he says that he was immediately transferred back to El Salvador

                                              17
and the times of death, the times of bodies, the times of burying bodies, the times of
guerillas, soldiers, Black Shadows, the times of his father disappearing, not knowing
what was going to happen. [¶] And he said he’s been confronted with death so many
times over his life, almost daily from ages four to 16, and he says that when––confronted
with death, there’s one thing to do, that’s to bury the body. There were . . . no authorities
to call in El Salvador.” Dr. Davies was also aware of Stephanie Johnson’s encounter
with defendant, who appeared to be drunk at 5:30 a.m. on September 10, 2008. Based on
the above, Dr. Davies opined that defendant’s “state of mind before he found Mr. San
Juan’s body” was that “he was drunk. I think he was so drunk that he had no idea what
was going on, and he was so drunk that he was unconscious, and so then he ended up
fabricating various versions of the story to try to explain his movements.”
       Asked if she believed defendant “could have been unconscious” when Mr. San
Juan was killed, Dr. Davies said, “Yes. ” (Italics added.) Based on defendant’s habitual
intake of alcohol as reported by family members and the reports, including those of
Drs. Jeko and French, Dr. Davies opined “[t]he level of alcohol which he was consuming
on a regular basis was more than enough to make him unconscious.”
       Based on the videotape and transcript of defendant’s interview with police and her
own conversations with him, Dr. Davies opined, “I don’t believe he has any idea” how
Mr. San Juan died. Defendant initially told police did not know what happened. When
the police suggested Mr. San Juan had a heart attack, defendant went with their
suggestion. “[T]his is common when someone is unconscious and trying to make sense
for themselves of what happened during a time that they were unconscious.” In her
opinion, it is not possible for a person in an unconscious state to form memories.
       Dr. Davies summarized: “Mr. Marroquin was a known excessively heavy drinker,
to the point of intoxication and to the point where he did not remember what happened,
and that’s based on multiple sources. [¶] Mr. Marroquin has known PTSD, which
involves dissociative episodes, which is a time when he’s not able to form new memories

                                             18
or to actually act with conscious intent. [¶] And Mr. Marroquin was unable to provide a
consistent story of actually what happened the night that Mr. San Juan was murdered.”
(Italics added.) Under further questioning by the prosecutor, Dr. Davies stated it was her
opinion that at the time of Mr. San Juan’s death defendant was unconscious; she believed
both alcohol and PTSD contributed to his condition; and that she did not know what
triggered the dissociative episode because Mr. Marroquin cannot remember or tell her
what it was.
       Based on Dr. Weinstein’s testing, Dr. Davies also opined defendant’s IQ is below
average, probably in the range of 60 to 70. She was also of the opinion that defendant
was not malingering when he was assessed by her and by Dr. Weinstein.
       The Court’s Ruling
       The trial court ruled that sections 28 and 29 did not permit Dr. Davies to testify
“whether or not, in her opinion, Mr. Marroquin was unconscious at the time” of Mr. San
Juan’s death. “That is the mental state. [I]t’s exactly the mental state. If she says he’s
unconscious, that means he hasn’t been able to form any intent; he had no intent; he
didn’t know what he was doing. That’s exactly what Penal Code §29 doesn’t permit.”
Nor could she state “why she believes he’s unconscious” or “her argument as to why he
told different stories.” However, she could “describe unconsciousness and how these
conditions [PTSD and alcohol abuse] can result in a person being unconscious.” She
could be asked “whether it would be possible, given all of this, for Mr. Marroquin to have
been unconscious without anything further. Is it possible that a person with all these
conditions could be unconscious and commit an act and not remember it? And could he
have been unconscious at that time?”
       Similarly, the court ruled Dr. Davies could not testify that in her opinion defendant
was in a dissociative state the first time he moved the body into the hallway by himself,
although she could say it was consistent with her diagnosis and analysis. However, she
could testify that in her opinion defendant suffers from PTSD, the basis for that opinion,

                                             19
what can happen to a person who has PTSD, and how it manifests itself. She could also
testify about defendant’s alcohol dependency and polysubstance abuse; describe it;
explain “why she believes that, and what effect that could have on a person’s mental
capacity, ability to remember, and ability to know what they’re doing at the time.”
       The court also ruled Dr. Davies could opine that defendant was not malingering,
and explain why she held that opinion.
       The court ruled defendant’s statements to her were inadmissible because “it’s
hearsay . . . [a]nd there’s no way of probing that.” However, Dr. Davies could state her
opinions were based on her interview with defendant, among “a whole list of things that
she looked at.” In other words, she could state, “It’s my opinion that he doesn’t
remember,” but she could not state, “I believe he didn’t remember because he told me . . .
[this].”
       Similarly, with respect to defendant’s statement to police, the court limited
Dr. Davies’ testimony to saying “that she reviewed it, and that’s one of the things she’s
basing her conclusions on, without going into detail about it’s clear when he says this that
this means this, because that’s for the jury to decide.”
       Analysis
       The permissible scope of expert testimony under sections 25, 28 and 29 has been
extensively studied in the case law. Section 25, subdivision (a), abolishes the defense of
diminished capacity. Section 28, subdivision (a) makes inadmissible, in a criminal
action, capacity evidence; that is, “[e]vidence of mental disease, mental defect, or mental
disorder” offered to “show or negate 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.” (Italics added.) It also carves
out an exception to section 25 for evidence of diminished actuality: “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

                                             20
harbored malice aforethought, when a specific intent crime is charged.” (Italics added.)
However, section 28, subdivision (d), preserves the trial court’s “discretion, pursuant to
the Evidence Code, to exclude psychiatric or psychological evidence on whether the
accused had a mental disease, mental defect, or mental disorder at the time of the alleged
offense.” (See People v. Pearson (2013) 56 Cal.4th 393, 450 (Pearson).) Finally,
section 29 restricts the permissible scope of expert testimony on diminished actuality:
“[A]ny 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.” Nevertheless, “ ‘[s]ections 28 and 29 in fact leave
an expert considerable latitude to express an opinion on the defendant’s mental condition
at the time of offense, within the confines, of course, of its twin prohibitions: no
testimony on the defendant’s capacity to have, or actually having, the intent required to
commit the charged crime.’ ” (Pearson, at p. 451, citing Cortes, supra, 192 Cal.App.4th
at p. 9-10; People v. Coddington (2000) 23 Cal.4th 529, 583 (Coddington), overruled on
another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069 & fn. 13.).)
       “[S]ections 28 and 29 do not prevent the defendant from presenting expert
testimony about any psychiatric or psychological diagnosis or mental condition he may
have, or how that diagnosis or condition affected him at the time of the offense, as long
as the expert does not cross the line and state an opinion that the defendant did or did not
have the intent, or malice aforethought, or any other legal mental state required for
conviction of the specific intent crime with which he is charged.” (Cortes, supra,
192 Cal.App.4th at p. 908.) “Sections 28 and 29 do not preclude offering as a defense the
absence of a mental state that is an element of a charged offense or presenting evidence in
support of that defense. They preclude only expert opinion that the element was not
present.” (Coddington, supra, 23 Cal.4th at p. 583, italics added.) “By its terms, section
29 prohibits an expert witness from giving an opinion about the ultimate fact whether a

                                             21
defendant had the required mental state for conviction of a crime. It prohibits no more
than that.” (People v. Ochoa (1998) (19 Cal.4th 353, 431, italics added (Ochoa).)
         Delineating the proper scope of expert testimony from mental health professionals
on this subject always boils down to whether the expert’s proposed testimony expresses
an opinion “ ‘tantamount to’ ” (Cortes, supra, 192 Cal.App.4th at p. 910) or the
“functional equivalent of” (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1327) an
opinion the defendant did or did not have the requisite criminal intent (“the ultimate
fact”). For “[a]n expert may not evade the restrictions of section 29 by couching an
opinion in words which are or would be taken as synonyms for the mental states
involved. Nor may an expert evade section 29 by offering the opinion that the defendant
at the time he acted had a state of mind which is the opposite of, and necessarily negates,
the existence of the required mental state.” (People v. Nunn (1996) 50 Cal.App.4th 1357,
1364.)
         The recent Supreme Court opinion in Pearson, supra, 56 Cal.4th 393, informs our
analysis of where to draw the line between permissible and objectionable expert
testimony on the defendant’s mental state. In Pearson, the defendant shot and killed two
former coworkers after alluding to “the infamous 1993 massacre of numerous employees
in a law office located at 101 California Street in San Francisco.” (Id. at p. 403.) At trial,
defense counsel asked his expert whether defendant’s threats to “do a ‘101 California’ ”
indicated he thought about committing a “ ‘101 California’ ” before the murders. The
trial court sustained the prosecutor’s objection that defense counsel was trying to elicit
the expert’s opinion on the mental elements of premeditation and deliberation. (Id. at
pp. 442–443.) Our Supreme Court found no abuse of discretion: “The very definition of
‘premeditation’ encompasses the idea that a defendant thought about or considered the
act beforehand. . . . The court instructed the jury that the ‘word “deliberate,” which
relates to how a person thinks, means formed or arrived at or determined upon as a result
of careful thought and weighing of considerations for and against the proposed course of

                                             22
action. [¶] The word “premeditated” relates to when a person thinks and means
considered beforehand. One premeditates by deliberating before taking action.’ (See
CALJIC No. 8.20.) [¶] The trial court acted within its discretion in finding that the
question at issue here essentially asked the expert to provide an opinion about the
required mental state (premeditation and deliberation) and thus was improper under
section 29.” (Id. at pp. 443–444.) Similarly, objections were properly sustained to the
defense expert’s testimony that “(1) ‘[defendant] seemed to be [in] a reactive kind of
state, rather than . . . cold and calculated’; (2) ‘[At the time of the crimes, defendant]
didn’t seem to know what he was doing’; and (3) ‘defendant’s impairment [at the time of
the commission of the crimes] definitely needs to be taken into consideration here. It’s
part of why he couldn’t handle the stress he was under.’ ” (Pearson, at p. 451.)
       On the other hand, there was nothing improper about the prosecution expert’s
testimony that defendant’s comment “ ‘I ain’t no joke,’ ” made before and after defendant
shot one of the victims, indicated anger, retribution and revenge. This testimony
“properly related to defendant’s general mental condition during his killing spree and did
not express an opinion on his criminal intent when he shot the victims.” (Pearson, supra,
56 Cal.4th at p. 451.) Similarly, the prosecution’s expert was permitted to testify that
defendant’s conduct “could not be explained by ‘anything delusional or hallucinatory,’ ”
because this comment “did not describe defendant’s mental state at the time he shot the
victims, but rather, his diagnosed mental condition.” (Ibid.) Finally, it was permissible
for the prosecution’s expert to offer “the abstract opinion” that the defendant’s diagnosed
personality disorders, obsessive compulsiveness and schizoid paranoia, would not “ ‘in
any way prevent a person from committing deliberate and premeditated murder,’ ” since
this opinion “was merely ‘descriptive of the condition that [the expert] diagnosed’ and
the ‘comments did not go to defendant’s mental state at the time of the events but, rather,
gave jurors an abstract description of defendant’s diagnosed condition that they could



                                              23
consider when deciding the ultimate issue of whether he premeditated and deliberated the
murders.’ ” (Id. at p. 452; italics added.)
       Dissociation is not itself a “mental state required for the commission of the crime
charged” (§ 25) “with which the accused committed the act.” (§ 28.) Nor is it, strictly
speaking, “the opposite of ” a required mental state. Dissociation is not a legal concept at
all; it is a diagnosable neuoropsychological phenomenon or condition that can affect
persons who suffer from PTSD. It may or may not coexist with criminal intent.
       In our case, Dr. Davies described dissociation as an episode where a person feels
completely separated from reality and is not mentally connected to where he is
physically. She referenced as examples people who have engaged in substantial conduct
but not remembered it. They can do very complex activities, and “[n]ot only are they not
aware that they’re doing it, but they’re not able to lay down memories.” However, even
at the section 402 hearing, Dr. Davies did not opine defendant was in a dissociated state
when Mr. San Juan died. Instead, she offered the opinion that defendant was in a
dissociated state when he dragged the body in its trash bag out into the hallway by
himself. In our view, based on Cortes, supra, 192 Cal.App.4th 873 and Pearson, supra,
56 Cal.4th 393, Dr. Davies properly testified before the jury that, in her opinion, a person
with PTSD could have been in a dissociative state while dragging a body bag into the
hallway, as defendant is shown to be doing in the videotape, without really being aware
of doing it. In our view, she should also have been able to testify defendant was in such a
state. The unadorned opinion that the defendant was in a dissociated state is not the
equivalent of an opinion that the defendant was incapable of forming, or did not actually
form, the intent to kill, or malice aforethought, or premeditation or deliberation. Such an
opinion did not address defendant’s mental state at the time of the killing.
       In Cortes, supra, 192 Cal.App.4th 873, the court held the testifying expert,
Dr. Dondershine, should have been able to opine that the defendant was in a dissociated
state when stabbed the victim. (Id. at pp. 909, 911.) In our view, Dr. Davies’ opinion

                                              24
that defendant was in a dissociated state when he moved the body would not have
usurped the jury’s factfinding role or violated section 29. At most, it might have
provided the jury a less tentative basis to infer that if defendant was in a dissociated state
then, he might have been in such a state earlier, when he killed Mr. San Juan.
       Legal unconsciousness is different. Like dissociation, unconsciousness is a
neuropsychological phenomenon or condition which can affect the defendant’s actual
formation of criminal intent. But it is more than that: unconsciousness is also a statutory
defense, enacted in 1872, of incapacity that negates criminal intent and vitiates criminal
responsibility. (§ 26, par. Four.) For unconsciousness due to voluntary intoxication to
reduce murder to involuntary manslaughter, it “need not mean that the actor lies still and
unresponsive: section 26 describes as ‘[in]capable of committing crimes . . .
[¶] . . . [¶] . . . [p]ersons who committed the act . . . without being conscious thereof.’
(Italics added.) Thus unconsciousness ‘ “can exist . . . where the subject physically acts
in fact but is not, at the time, conscious of acting.” ’ ” (Ochoa, supra, 19 Cal.4th at
pp. 423–424.) Here, the jury was instructed that unconsciousness was the same as not
being aware of one’s actions or the nature of one’s actions.6 For an expert to say that the


       6
         The jury was instructed in relevant part: “Voluntary intoxication may cause a
person to be unconscious of his or her actions. A very intoxicated person may still be
capable of physical movement but may not be aware of his or her actions or the nature of
those actions. [¶] . . . [¶] . . . If someone dies as a result of the actions of a person who
was unconscious due to voluntary intoxication, then the killing is involuntary
manslaughter. [¶] Involuntary manslaughter has been proved if you find beyond a
reasonable doubt that: [¶] 1. The defendant killed without legal justification or excuse;
[¶] 2. The defendant did not act with the intent to kill; [¶] 3.The defendant did not act
with a conscious disregard for human life; [¶] AND [¶] 4. As a result of voluntary
intoxication, the defendant was not conscious of his actions or the nature of those actions.
[¶] The People have the burden of proving beyond a reasonable doubt that the defendant
was not unconscious. If the People have not met this burden, you must find the defendant
not guilty of murder.” (CALCRIM No. 626.)
      The jury was also instructed it could consider the evidence presented on
defendant’s mental disease “only for the limited purpose of deciding whether, at the time

                                              25
defendant was unconscious when he killed is tantamount to, or the functional equivalent
of, stating the opinion he was both factually and legally unaware of what he was doing
and therefore not capable of criminal agency or intent. In our view, the trial court did not
abuse its discretion by limiting Dr. Davies’ opinion to the likelihood or possibility that
defendant was unconscious when Mr. San Juan was killed.
       The trial court also limited Dr. Davies’ testimony about the bases of her opinions.
As noted above, the trial court excluded on hearsay grounds her proposed testimony
about the content of defendant’s statement to her pertaining to his recollection of his state
of mind at the time Mr. Juan was killed.7 Defendant argues the content of defendant’s
statement to her was not hearsay because it was not “offered to prove the truth of the
matter stated.” (Evid. Code, § 1200.) He also asserts his statements were admissible as
nonhearsay circumstantial evidence of defendant’s mental state. We note he did not


of the charged crime, the defendant acted with the intent or mental state required for that
crime. [¶] The People have the burden of proving beyond a reasonable doubt that the
defendant acted with the required intent or mental state, specifically: specific intent
and/or present ability to premeditate and deliberate. If the People have not met this
burden, you must find the defendant not guilty of Murder.” (CALCRIM No. 3428.)
      Finally, the jury was instructed on first and second degree murder (CALCRIM
Nos. 520, 521) and involuntary manslaughter as a lesser included offense of murder.
(CALCRIM No. 580.)
       7
         According to Dr. Davies’ report dated April 7, 2014, defendant said “[h]e came
home on the 11th and noticed that there was a vase blocking the door. He said, ‘Hi
Nestor’ and noticed he was in the bathtub, nude. ‘I was drunk, talking to him, then I
moved his head because he didn’t respond . . . my mind went ugly . . . in my county when
there’s death, you open a hole and put them in it. I wanted to take this out like in El
Salvador so it wouldn’t smell bad.’ [Mentally] ‘I was back in my country. I wanted to
take it out.’ He says that at that point, he felt like, ‘I wasn’t in San Francisco. I was in
my country, living that time.’ Mr. Marroquin doesn’t remember taking the body out the
1st time, or going in and out, which he did multiple times. [¶] He panicked and did not
think he could call the police. ‘I had so much fear in the moment.’ His history with the
police and authorities has been troublesome, watching the death squads in El Salvador.
Growing up, there were no authorities he could trust. At that point he lost all emotion,
and dissociated––i.e., he kept acting but did not feel as if he was in his own body.”

                                             26
make this latter argument in the trial court; it is therefore waived. (In re Seaton (2004)
34 Cal.4th 193, 198; People v. Jenkins (2000) 22 Cal.4th 900, 1000.) In any event, we
disagree.
       As circumstantial evidence of defendant’s mental state at the time he made the
statements to Dr. Davies, they were irrelevant to any disputed issue in the case. (Evid.
Code, § 210.) As evidence of defendant’s previously existing mental state, that is, his
mental state at the time of the killing, defendant’s statements to Dr. Davies were relevant,
but only if it was true defendant felt mentally transported to his past and a different
country. “[E]vidence of a statement of the declarant’s state of mind, emotion, or physical
sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or
bodily health) at a time prior to the statement is not made inadmissible by the hearsay
rule if: [¶] (a) The declarant is unavailable as a witness; and [¶] (b) The evidence is
offered to prove such prior state of mind, emotion, or physical sensation when it is itself
an issue in the action and the evidence is not offered to prove any fact other than such
state of mind, emotion, or physical sensation.” (Evid. Code, § 1251.) However,
defendant’s exercise of his privilege not to testify did not render him “unavailable” for
this purpose. (People v. Edwards (1991) 54 Cal.3d 787, 819.) Therefore, his statement
to Dr. Davies was not admissible as circumstantial evidence of his state of mind at the
time of the killing. People v. Cooper (2007) 148 Cal.App.4th 731 (Cooper), on which
defendant relies, is unhelpful. The Cooper court held that an expert witness’s reliance on
the elderly victim’s videotaped statements for his opinion regarding the victim’s mental
competence did not violate the confrontation clause as interpreted by Crawford v.
Washington (2004) 541 U.S. 36 because “[s]uch evidence is not admitted for the truth of
the matter asserted.”8 (Cooper, at p. 747.)

       8
        We note this very question is currently under review by the California Supreme
Court. (See, e.g., People v. Sanchez (2014) 223 Cal.App.4th 1 (review granted May 14,
2014, S216681.)

                                              27
       Defendant’s statement to Dr. Davies was presumptively admissible as the basis for
her opinions. “Since an expert’s opinion ‘ “is no better than the facts on which it is
based” ’ [citation], experts should generally be allowed to testify to all facts upon which
they base their opinions. [Citation.] ‘ “An expert may generally base his opinion on any
‘matter’ known to him, including hearsay not otherwise admissible, which may
‘reasonably . . . be relied upon’ for that purpose.” ’ ” (People v. Bordelon, supra,
162 Cal.App.4th at p. 1324, italics added.) However, “ ‘Evidence Code section 352
authorizes the court to exclude from an expert’s testimony any hearsay matter whose
irrelevance, unreliability, or potential for prejudice outweighs its proper probative
value.’ ” “ ‘[P]rejudice may arise if, “ ‘under the guise of reasons,’ ” the expert’s detailed
explanation “ ‘[brings] before the jury incompetent hearsay evidence.’ ” ’ ” (People v.
Carpenter (1997) 15 Cal.4th 312, 403.)
       In Bordelon, supra, 162 Cal.App.4th 1311, this court concluded the trial court
erroneously sustained a hearsay objection to the defense psychologist’s testimony that
defendant told a parole office psychologist, during the week between his release on
parole and his commission of the charged bank robbery, “ ‘that he felt lost [when] he was
out [of prison].’ ” The defense psychologist considered this statement an example of
behavior consistent with the defendant’s institutionalization defense. (Id. at p. 1324.)
Because the statement was relevant to the defense, supportive of the defense
psychologist’s opinion, made at a time when there was arguably no motive for
fabrication, and reported by a reliable source, the court found “it was an abuse of
discretion to prevent [the psychologist] from testifying to his reliance on the statement.”
(Id. at p. 1325.) On the other hand, in People v. Hughes (2002) 27 Cal.4th 287 (Hughes),
the defense expert was barred from testifying “about defendant’s alleged hearsay
statements to the defense investigator, which were inconsistent with his statements to the
police.” The Hughes court found no abuse of discretion. (Id. at p. 339.)



                                             28
       In our view, this case is more like Bordelon than Hughes. Except for defendant’s
statement about seeing Mr. San Juan naked in the bathtub, which could have been easily
excised, defendant’s statement was not necessarily inconsistent with his statement to
police. It was highly relevant to his defense of unconsciousness, supportive of
Dr. Davies’ opinions, and was reported by a reliable source, the doctor herself. As for
arguable motive to fabricate, whenever a defendant facing trial and punishment speaks to
a psychiatrist or psychologist hired to evaluate his or her mental state, there is a potential
motive to lie. Juries implicitly understand this. Mental health professionals test for
malingering. Yet, a mental health expert is “entitled to base [an] opinion on observations
of, and statements made by, the patient during a routine psychological interview.”
(People v. Stoll (1989) 49 Cal.3d 1136, 1155; see generally, 1 Witkin, Cal. Evid. (5th ed.
2012) Opinion Evidence, § 34, p. 652.) Indeed, experts routinely testify about the
defendants’ statements to them. (See, e.g., People v. Bell (2007) 40 Cal.4th 582, 609
[“ ‘Mr. Bell described [stabbing Joey] as feeling outside of himself, observing himself,
almost observing in a trance like state.’ ”]; People v. Halvorsen (2007) 42 Cal.4th 379,
392 [“Dr. Vicary acknowledged that defendant had lied to him, denying his involvement
in the Perez and Ferguson shootings, although he had previously admitted responsibility
to the UCLA psychiatrist.”]; Coddington, supra, 23 Cal.4th at p. 560 [“Dr. Satten found
no inconsistency between appellant’s statement to him that he had received no messages
on the day he lured the victims to his trailer and his statement to another expert that the
traffic lights were all green on the way to the trailer.”]; People v. Hernandez (2000)
22 Cal.4th 512, 517 [a court-appointed psychiatrist testified “defendant believed that he
was a messenger of God, that everybody was out to kill him, and that people were using
witchcraft against him.”]; People v. McCowan (1986) 182 Cal.App.3d 1,10 [“In
Dr. Galioni’s interviews with defendant following completion of the guilt phase,
defendant stated he felt angry and ‘disjointed’ at the time of the offenses.”]; see also
People v. Jackson (1984) 152 Cal.App.3d 961, 965 [defendant told psychiatrist that “[i]n

                                              29
the present incident, Jackson believed himself to be acting on behalf of the ‘Order of the
Knights of St. Michael’ and the ‘Kingdom of Heaven.’ ”].)
       We are mindful of the trial court’s “discretion ‘to weigh the probative value of
inadmissible evidence relied upon by an expert witness . . . against the risk that the jury
might improperly consider it as independent proof of the facts recited therein.’ . . . [¶]
‘Most often, hearsay problems will be cured by an instruction that matters admitted
through an expert go only to the basis of his opinion and should not be considered for
their truth. [Citation.] . . . Sometimes a limiting instruction may not be enough. In such
cases, Evidence Code section 352 authorizes the court to exclude from an expert’s
testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice
outweighs its proper probative value.’ ” (People v. Bell, supra, 40 Cal.4th at p. 608.)
Nevertheless, on this record, we perceive a certain arbitrariness in the court’s ruling.
Dr. Jeko was afforded great leeway to testify about defendant’s statements to her,
including the statement that he was not blacked out from alcohol consumption during the
“global” time frame of the events of September 9 to 11, 2008. We are not convinced the
trial court here carefully weighed the pros and cons of editing defendant’s statement and
giving a limiting instruction instead of suppressing defendant’s statement to Dr. Davies
altogether. In our view, the trial court abused its discretion in this instance. For similar
reasons, we also believe the court should have allowed Dr. Davies to explain how
defendant’s statement to police informed her opinions.
       Nevertheless, in light of the breadth of Dr. Davies’ testimony about defendant, the
errors were harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Bell,
supra, 40 Cal.4th at p. 610 & fn. 10.) Dr. Davies was permitted to testify to almost
everything she said in the Evidence Code section 402 hearing. She testified extensively
about defendant’s childhood traumas, history of hospitalizations, diagnoses of PTSD,
alcoholism, and low IQ, and how such conditions manifested themselves generally and in
defendant’s life. She described dissociation and unconsciousness. She testified she

                                             30
believed defendant could have been in a dissociative state when he dragged the garbage
bag with Mr. San Juan’s body in it into the hallway the first time. She testified defendant
was likely in an unconscious state when he killed defendant, and that she believed
defendant did not, in fact, remember the killing. The jury also had before it a videotape
and audiotape of defendant’s statement to police, in which he repeatedly denied knowing
what happened to Mr. San Juan, and the videotape of defendant dragging the body bag
into the hallway. In our view, this is not a case like Cortes, supra, 192 Cal.App.4th 873,
where the expert’s testimony was so restricted the jury learned nothing about defendant’s
diagnoses and had no basis to connect the expert’s testimony about dissociation in
general with the defendant Cortes in particular. Here, unlike Cortes, the jury had ample
basis “to infer that defendant had lapsed into a dissociated state” or unconsciousness “in
which he might not have deliberately premeditated” the killing or formed the intent to
kill. (Cortes, at p. 912.) In fact, despite the restrictions on Dr. Davies testimony, the jury
evidently did infer defendant lacked the requisite intent for first degree murder, despite
overwhelming evidence defendant inflicted numerous traumatic wounds on Mr. San
Juan’s body and also applied a ligature to his neck to kill him. Under these
circumstances, defendant was not deprived of his right to present a defense, and the errors
were harmless under any standard. (People v. Bell, at p. 610 & fn. 10.)
II.    Review of In Camera Pitchess/Brady Proceedings
       Defendant requests we review the sealed transcripts of the People’s two
Pitchess/Brady motions for judicial error. (Pitchess, supra,11 Cal.3d 531; Brady, supra,
373 U.S. 83.) The Attorney General agrees this court has the “authority to review a
sealed record pertaining to a Pitchess motion.”9

       9
         The Attorney General also suggests that defendant lacks “standing to ask the
court to review the correctness of the trial court’s ruling on a Pitchess motion brought by
the prosecution.” The Attorney General does not develop this thought beyond stating that
defendant “had equal access to the confidential records of police officers, and was
required to bring his own Pitchess motion,” citing People v. Superior Court (Johnson)

                                             31
       On November 22, 2010, the People made a written motion for discovery of
personnel records in the custody of the San Francisco Police Department (Department)
pertaining to Officer Antonio Casillas. The motion alleged that “the San Francisco Police
Department ha[d] informed the District Attorney’s Office that Antonio Casillas has
material in his personnel file that may be subject to disclosure under Brady . . . .”10 An in
camera hearing was held on December 10, 2010, before the Honorable James P. Collins.
       The prosecutor made a second written Pitchess motion on September 2, 2011,
requesting the court review in camera the confidential personnel records of San Francisco
Police Officers Cameron Mullins and Charles Cecil in the custody of the Office of the
Chief Medical Examiner. The motion alleged the Chief Medical Examiner had informed
the District Attorney’s Office the two officers’ personnel files might contain Brady
material. The hearing was held on October 27, 2011, before the Honorable Angela
Bradstreet. None of the police officers identified in the People’s motions testified at trial.



(2015) 61 Cal.4th 696 (Johnson). In our view, the Supreme Court did not require
defendants to file follow-up Pitchess motions, nor did it address whether defendants have
standing to seek appellate review of the trial court’s ruling on the prosecution’s Pitchess
motion. (Cf. Alford v. Superior Court (2003) 29 Cal.4th 1033, 1046 (Alford) [prosecutor
lacks standing to demand defense disclose fruits of successful Pitchess motion.] “[I]t is
axiomatic that cases are not authority for propositions not considered.” (People v.
Alvarez (2002) 27 Cal.4th 1161, 1176.) Furthermore, failure to furnish authority on a
particular point allows the court to deem it waived. (People v. Stanley (1995) 10 Cal.4th
764, 793.)
       10
          The motion was brought pursuant to Bureau Order No. 2010-11, dated
August 13, 2010, which provides that when the Department identifies an officer or
civilian employee as having possible Brady material in his or her personnel file, the
Department will inform the Chief of the Criminal Division in the District Attorney’s
Office of the existence of the material, specifying only the employee and the fact that
such material exists. No actual materials from the personnel file will be disclosed to the
District Attorney’s Office at that time. If the District Attorney’s office determines the
identified officer is a material witness in a pending criminal case, or may be called as a
witness, the District Attorney shall make a motion for in camera judicial review of the
material to determine whether the prosecution is required to disclose them.

                                             32
       In Johnson, supra, 61 Cal.4th 696, our Supreme Court held prosecutors do not
have carte blanche access to a police officer’s confidential personnel file in search of
potentially exculpatory evidence it must disclose to the defense under Brady, supra, 373
U.S. 83, when the police department informs the prosecutor that such evidence exists in a
police officer’s personnel file. Instead, the prosecutor must file a Pitchess motion and
follow the same statutory procedures defendants must follow in order to access
information in confidential police personnel files. (Johnson, at p. 705.) The court also
held “the prosecution fulfills its Brady duty as regards the police department’s tip if it
informs the defense of what the police department informed it, namely, that the specified
records might contain exculpatory information. That way, defendants may decide for
themselves whether to bring a Pitchess motion. The information the police department
has provided, together with some explanation of how the officers’ credibility might be
relevant to the case, would satisfy the threshold showing a defendant must make in order
to trigger judicial review of the records under the Pitchess procedures.” (Johnson, at
pp. 705–706, italics added.)
       Presumably, the District Attorney complied with his duty to disclose under
Johnson, supra, 61 Cal.4th 696.11 So far as this record shows, the defense did not make
any Pitchess motions. Defendant would certainly be entitled to appellate review of his
own Pitchess motion, if he made one. (People v. Mooc (2001) 26 Cal.4th 1216, 1228–
1229.) But as to the People’s Pitchess motion, assuming arguendo defendant has a
“legitimate interest in what is essentially a third party discovery proceeding” as to him
(Alford, supra, 29 Cal.4th at p. 1045), we fail to see how defendant has preserved that


       11
          The appellate record contains a protective order signed by the judge, the district
attorney and the defense attorney as to Officer Casillas. The record also contains a
protective order signed only by the district attorney as to records from the Office of the
Chief Medical Examiner as to Officers Cecil and Mullins, but a request for a continuance
filed by defense counsel indicates he was advised by the assistant district attorney that
“Brady materials exist for the OCME Investigators who worked on this case.”

                                             33
interest when he had notice of the trial court’s ruling and failed to bring his own Pitchess
motion for disclosure of Brady materials. Under these circumstances, we decline to
engage the courts’ limited resources in a search for records which defendant did not
consider worth the effort of a motion. We deem the request for review waived.
                                      DISPOSITION
       The judgment is affirmed.

                                                  _________________________
                                                  DONDERO, J.


We concur:


_________________________
HUMES, P. J.


_________________________
BANKE, J.




                                             34
