Filed 7/14/16 P. v. Murphy CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069891
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF150423A)
                   v.

GEOFF MURPHY,                                                                            OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
         Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Geoff Murphy was convicted by a jury on charges of elder abuse, making criminal
threats, and first degree murder. The trial evidence showed that Murphy fired a bullet
into his father’s head at point-blank range. He was sentenced to an indeterminate term of
life in prison with a minimum incarceration period of 53 years and eight months.
       The unusual facts of this case involve an altercation between a 74-year-old man
and his son, the then 33-year-old appellant, who by all accounts was suffering from
mental health problems at the time of the incident. Appellant had been verbally abusive
toward his mother, culminating in threats of bodily harm, and his father reacted by
pulling out a pistol and shooting appellant in the chest. Appellant grappled with his
father and succeeded in disarming him. He was able to subdue the older man, but
proceeded to beat him about the face and body before ending his life with a single
gunshot. The jury found the killing to be unmitigated and premeditated, rejecting
appellant’s self-defense argument and his claim that the symptoms of a well-documented
mental disorder precluded him from forming the requisite intent for murder.
       Appellant’s contentions on appeal include three claims of instructional error, all of
which have been forfeited due to the absence of a timely objection. Appellant failed to
raise any issues concerning the instructions he now challenges, and relied on some of
those instructions to help explain his theory of the case to the jury. There is also a claim
regarding the trial court’s decision to strike a small portion of expert witness testimony,
and, lastly, challenges to the sufficiency of the evidence supporting the verdict.
Appellant’s arguments lack merit, which is not to say we share the jury’s interpretation of
the evidence, but only that the evidence is legally adequate to support the convictions.
We therefore affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Appellant is the son of James and Barbara Murphy. He grew up in Bakersfield,
took some college courses there after graduating from high school, and served in the
United States Army from 2003 to 2005 before receiving a general discharge under “other
than honorable” conditions. He later sought treatment for alcohol dependency, married a
woman whom he met through Alcoholics Anonymous, and relocated to Vallejo. In early

                                             2.
2009, appellant experienced what is described in the record as a significant “psychotic
episode” and was hospitalized for mental health care. He thereafter received psychiatric
treatment on a regular basis from March 2009 through June 2013.
       In July 2013, after separating from his wife, appellant moved back to Kern County
to live with his parents. According to Barbara Murphy, appellant showed signs of
depression during the initial weeks of his stay, e.g., crying and expressing regret for
having wasted much of his adult life. With the exception of a one-month stint working as
a security guard at an amusement park, he had spent the past several years unemployed
and living off of his wife’s disability income.
       On July 16, 2013, appellant’s father took him to a mental health facility in
Bakersfield known as the Mary K. Shell Center. The purpose of this visit was to find a
local doctor who could prescribe medication for appellant’s psychiatric conditions.
Appellant returned to the same facility on July 30, 2013, but it is unclear from the record
what services he received on that date, if any. A former roommate in Vallejo told
Barbara Murphy that appellant had obtained a month’s supply of medication before
leaving for Bakersfield, but Mrs. Murphy was not aware of him taking any psychotropic
medicine while he was living with her that summer.
       Appellant’s depression improved toward the end of July, but the change coincided
with new patterns of delusional and paranoid behavior. He claimed that the Department
of Homeland Security was recruiting him for an analyst position and had offered him a
$25,000 signing bonus to accept the job. Appellant also believed the government was
monitoring him through cameras and by aerial surveillance.
       On July 30, 2013, shortly before midnight, James Murphy made a 911 call for
police assistance due to appellant’s persistent interrogation of his mother about a
conspiracy theory involving a photograph taken of him as a baby. The dispatcher advised
there would be a delayed response because the police had other priorities. At 2:18 a.m.,



                                             3.
James Murphy contacted law enforcement to cancel his earlier request, since appellant
had by then calmed down and the family was ready to go to sleep.
       Appellant’s behavior worsened during the first week of August. He began to act
as if his parents’ home was a military installation and he was the commanding officer,
claiming that he outranked his parents and thus had control over the premises. The
assertion was nonsensical for a variety of reasons, not the least of which being that, in
contrast to appellant’s inglorious military experience, his father had achieved the rank of
Major over the course of a 23-year career in the Army. Nevertheless, appellant posted a
list of “rules” advising his parents of things they were forbidden from doing in their own
house without his permission.
       On August 8, 2013, appellant’s parents secretly met with an attorney to start the
process of obtaining a restraining order and having appellant removed from their home.
The lawyer agreed to file the necessary paperwork, but allegedly told Mr. and
Mrs. Murphy it was doubtful that a judge would rule in their favor because appellant had
not physically assaulted them. Later that evening, the couple’s niece, Gwenn Maher,
showed James Murphy how to make video recordings on his iPhone. Together they
devised a plan to surreptitiously record appellant’s behavior, with the goal of being able
to provide the authorities with evidence of his dangerousness. Mr. Murphy implemented
the plan immediately, recording his niece as she left the house and keeping the device
running while he and his wife watched television. The recording lasted for over
33 minutes, but appellant did not enter the room during that time.
       On August 10, 2013, James Murphy captured video footage of appellant berating
his mother for refusing to drive him to the grocery store. Mr. Murphy allowed the
argument to go on for approximately seven minutes before shooting appellant with a
nine-millimeter handgun, which had theretofore been concealed on or near his person.
Barbara Murphy called 911 and told the dispatcher, “My husband just shot my son.… My



                                             4.
son is crazy. He’s manic depressive [and] he’s off his medications.” Meanwhile,
appellant overpowered his father, took control of the gun, and killed him.
       The Kern County District Attorney charged appellant by information with
premeditated first degree murder (Pen. Code,1 §§ 187, 189; count 1), making criminal
threats against Barbara Murphy (§ 422; count 2), and committing acts of elder abuse
against both of his parents (§ 368, subd. (b)(1); counts 3 & 4)). An enhancement
allegation was included with the murder count for personal and intentional discharge of a
firearm resulting in death (§ 12022.53, subd. (d)). Appellant pleaded not guilty to all
charges, but apparently made no attempt to raise an insanity defense. The case went to
trial in June 2014.
       The prosecution built its case around a 28-minute video recorded on the morning
of August 10, 2013. As mentioned, the subject incident was documented on an iPhone,
which James Murphy had placed in an upright position behind where he was sitting when
the events unfolded. The video shows Barbara Murphy, then 69 years old, lounging in a
recliner located across from Mr. Murphy and to his left-hand side. The camera remains
stationary during most of the recording, facing toward the interior entryway of the house,
and the angle is just wide enough to show the front of Barbara Murphy’s chair. She
spends much of the video sitting or reclining, so viewers often see only her legs.
       Barbara Murphy had promised to take appellant to the grocery store earlier that
morning, but asked him to wait for one hour while she rested. The defense would later
argue Mrs. Murphy had no real intention of driving him to the store, but agreed to do so
knowing he would become angry and lash out when she went back on her word. In any
event, the video begins with appellant’s parents having a private conversation in their
living room:



       1   Unless otherwise specified, all further statutory references are to the Penal Code.


                                               5.
       Barbara:      Do you have a plan?
       James:        I don’t -
       Barbara:      How do you want to proceed on this?
       James:        Hmm?
       Barbara:      How do you want to proceed on this?
       James:        He’s got to physically assault one of us.
       Barbara:      No, he doesn’t.
       James:        Well, there’s no way - other way to stop it other than when you - by
                     calling 9-1-1, yeah. We hope.
       Barbara:      They –
       James:        They still have to get here before he does something.
       Barbara:      I would like you to record if you could. Alright?
       James:        I have it on.
       Barbara:      Okay. Because if they come out and he’s reasonable we just look
                     like we’re stupid.
       James:        What?
       Barbara:      If we don’t record something and he does not assault us we’re going
                     to look stupid if we don’t have a recording to show what’s going on.
       Following this discussion, Mr. and Mrs. Murphy briefly chat about unrelated
topics and then remain silent for nearly eight minutes. Appellant can be seen walking in
and out of the room during this interval. It is apparent from the video that he is a large
and physically fit man. Elsewhere in the record, appellant is described as being 6’2” and
weighing between 220 and 230 pounds. James Murphy was similar in size, standing at
6’1” and weighing 206 pounds, but the age difference between father and son was more
than 40 years.
       Appellant’s argument with his mother occurs while Barbara Murphy is seated in
her recliner and appellant is standing in front of her, though he sometimes paces about the

                                             6.
room. The following excerpts contain most of their seven-minute conversation, with
slight modifications to the transcript for purposes of readability and annotations regarding
the parties’ respective movements. Appellant generally speaks in a conversational tone,
but there are times when he suddenly screams at the top of his voice. The latter instances
are denoted with capitalized type, both here and in the original transcript.
       Appellant:    About ready?
       Barbara:      No.
       Appellant:    Well, uh, you want to go?
       Barbara:      No.
       Appellant:    You don’t want to go?
       Barbara:      Geoff, I’m not feeling good.
       Appellant:    Alright, so I’ll just go.
       Barbara:      You’re not going to just go.
       Appellant:    How the fuck are you going to tell me that? I want to go. And you
                     guys can just stay here and do your thing, but I need some things that
                     I need to take care of.
       Barbara:      Like what?
       Appellant:    None of your fucking business. How about the groceries? How
                     about a couple of things? I don’t have much time here. I don’t.
                     [Turns to address James Murphy] Care to weigh in dad? Father?
                     So-
       Barbara:      Your dad said-
       Appellant:    -anyway-
       Barbara       Dad said to make a list-
       Appellant:    I[‘ve] got a list. You’re not going to get my list. I’m going to go.
                     So either you’re up now or what.
       Barbara:      I want to -

                                                 7.
Appellant:   I’m not going to sit here and do this. This [-] you’re [not a] child.
             You’re older than me, okay. You know what the fuck I’m saying,
             it’s coming out [of my mouth]. We’re going. Now. Me and you.
             … Five minutes.
Barbara:     I’m not going to be ready.
Appellant:   Well then give me the keys ’cause I’m going.
Barbara:     No, I’m not giving you the keys.
Appellant:   Well then I’m calling the fucking police.
Barbara:     Call the police.
Appellant:   You ready for that?
Barbara:     Yeah.
Appellant:   Alright good. Oh, that’s right you guys have already tried. Didn’t,
             didn’t work out did it? [Apparently referring to the 911 call made on
             July 30, 2013.]
Barbara:     Yeah, you probably aren’t going to get any further than I did.
Appellant:   Oh, isn’t that interesting. You think so?
…
Appellant:   Yeah, so you about ready?
Barbara:     No.
Appellant:   [Unintelligible statement.] BITCH THIS IS A PRISON!
             [James Murphy leans forward in his chair and reaches toward the
             lower middle section of his back with his right hand.]
Barbara:     No, it’s not.
Appellant    YOU DO WHAT I SAY! … Why are you being so fucking
             combative? [Voice becomes calm again.] I see you’re tired [and] not
             feeling well, why don’t you just give me [the] car and give me a few
             bucks and I’ll go take care of it.

                                     8.
Barbara:     Geoff we had such a nice day yesterday.
Appellant:   I don’t give a shit. I hope it was wrecked with thoughts about how
             fucking terrible this can continue to be, should you continue on like
             this. Let’s go.
Barbara:     Geoff-
Appellant:   GEOFF WHAT?! Let’s go.
             [James Murphy sits back in the chair and crosses his legs.]
Appellant:   That’s right, you’ve got an order. You want to disobey the whole
             fucking United States right now?
Barbara:     Yeah, I’d like to see it in writing.
Appellant:   [Raising his voice again] I have it in writing bitch. It’s right here.
Barbara:     Well go show me.
Appellant:   You’re not going to get anything, ‘show me,’ this ain’t the “Show
             Me State!”
             [Barbara Murphy finds this comment amusing.]
Appellant:   Yeah, that’s a good one actually.
Barbara:     [Chuckles] It was quite funny. I, I don’t know why you can’t wait.
Appellant:   Why do I need you? You fucking forgot, all you are right now is [a]
             goddamn checkbook.
Barbara:     Well that might be-
Appellant:   [Mimicking his mother] “That might be.” You don’t have word
             edgewise. You want me to shut you down totally? [Raising his
             voice] Shut up. You’re the one I got to get through [to], Dad already
             gets it. He’s ex-military so he knows what to do. He knows fucking
             better. You don’t do what you’re doing right now to me.
Barbara:     What am I doing?



                                      9.
Appellant:   I’m giving you a fucking order bitch. That means let’s get up and
             go. That either means when I said five minutes I’m ready to go and
             I saw your ass standing over here - at or –
Barbara:     Excuse me.
Appellant:   -or what?
Barbara:     You already and I already agreed an hour.
Appellant:   Well it’s been an hour….
Barbara:     It hasn’t-
Appellant:   It’s 8:12 [a.m.], we’re about ten minutes off. I remember it was 7:26
             when we made this agreement….
…
Appellant:   It’s time. You’re awake. You’re aroused. Let’s go.
Barbara:     No, I’m not.
Appellant:   Well then bitch you better move and give me the keys. [Raises
             voice] You’ve had enough?! Give me the keys then or we’re going
             in five minutes…. Wipe your ass and we’re going in five minutes or
             you give me the keys or I will fucking call the police and tell them to
             come here.
Barbara:     Okay, call them now.
Appellant:   Fuck you. I’ll call them when I’m ready.
             [Barbara Murphy attempts to say something and appellant interrupts
             her twice with nonverbal outbursts.]
Barbara:     You aren’t going to call [them].
Appellant:   I’ll stomp your ass and they won’t even fucking do anything about it.
             You know how sick that is?
Barbara:     Why would you stomp my ass?



                                    10.
Appellant:   Because you’re being a little shit. I’m not your daddy. [Leans down
             toward Barbara’s face] I’m [your] fucking son come HELLBOUND
             BITCH!
             Yeah, I’m yelling at you. I don’t care if you bore me, you don’t
             even fucking give me a real baby picture. I know who [that is]. I
             remember Jason [referring to his younger brother] getting wheeled in
             the fucking stroller bitch. I was three and a half [years old,] yeah. I
             had memory then, remember I was talking at one! REMEMBER
             BITCH? [leans closer to her face] I AM THE ANTICHRIST!
             FUCK YOU!
Barbara :    Geoff, please.
             [Appellant begins pacing about the room, eventually moving off
             camera.]
Appellant:   I am the antichrist motherfucker, if you ever thought about it.
Barbara:     What exactly is-
Appellant:   SHUT UP.
Barbara:     -is the antichrist?
Appellant.   Five minutes!
Barbara:     No.
Appellant:   [Mimicking his mother] “No.” I told you this is a prison. I got
             shanked right here bitch. You ready to take me on?
             [Appellant walks back into the room holding an elongated lighter in
             his right hand, i.e., the type of device used to light a grill or
             fireplace.]
             Maybe I’ll just knock you upside the fucking head first. [Moves
             directly in front of his mother’s chair and punches the air.] YOU



                                     11.
             READY FOR THAT?! [Barbara flinches and raises her arm in a
             defensive posture.]
Barbara:     No.
Appellant:   [Mimicking his mother] “No.”
             Just like I had to fucking whine [pokes Barbara in the stomach with
             the lighter]. Just like that. [Swats her leg with the lighter two
             times.]
Barbara:     Stop hitting me!
Appellant:   Just like that.
Barbara:     Okay.
             [Appellant moves approximately six steps away from Barbara and
             goes out of view. James Murphy repositions himself and leans
             forward in his chair.]
Appellant:   [Speaking to his father] Major, don’t even think about it. I’ll do you
             next. You’re my favorite. [Walks back into view of the camera.]
Barbara:     Why don’t you put that thing away. Don’t hit me.
Appellant:   I didn’t hit you.
Barbara:     You did too. You poked at me.
Appellant:   [Pacing around the room] You battered the fuck out of me as a child,
             [even] kicked me in the balls, so fuck you.
Barbara:     I never kicked you-
Appellant:   Fuck you I have a better memory than you. It’s eidetic. E-D-E-
Barbara:     I did not kick you in the balls.
Appellant:   E-I-D-E-T-I-C, excuse me.
…
Barbara:     Don’t you remember when you broke my finger?



                                      12.
       Appellant:    [Standing a few feet away from the front of his mother’s chair] That
                     was so good. You deserved it. You little bitch. You were slapping
                     me while I was driving. Fuck you.
       Barbara:      Uh, you almost-
       Appellant:    Fuck you.
                     [At this point appellant extends his right arm and ignites the lighter.
                     He pauses, takes a step closer, then extinguishes the flame.]
       Barbara:      Stop that.
       Appellant:    Fuck you.
       Barbara:      Okay.
       As Barbara Murphy says “okay” for the last time, appellant drops his hand to his
side and starts to turn away from her. A second later, James Murphy says, “That’s
enough,” then rises out of his chair and shoots appellant in the middle of his chest.
Appellant recoils in pain and lets out a yell as James Murphy aims the gun a second time.
Before he can fire another round, appellant lowers his left shoulder and charges at him,
trying to wrap his right arm around his father’s upper body as the two of them move off
camera.
       The men disappear from view at approximately 18 minutes and 28 seconds into
the video. During the next 10 seconds, appellant laughs and says, “You shot me? Are
you serious? Are you fucking serious motherfucker?” While this is happening, Barbara
Murphy gets out of her chair, fumbles with a cordless telephone, and walks out of the
house amid the sounds of a struggle. As she closes the door behind her, appellant can be
heard saying, “I’m gonna kill you. I’m gonna kill you.” He then asks, “How’d you get
this gun?” This is followed by approximately 30 more seconds of audible combat. The
viewer/listener hears the unmistakable sound of blows being landed, interspersed with
grunting, heavy breathing, and further laughter on appellant’s part, with statements by



                                            13.
him that include, “Fuck you, motherfucker,” a comment about his father’s rolling
“eyeballs,” and words to the effect of, “You think you give me clearance motherfucker?”
       When the video counter reaches 19 minutes and 17 seconds, appellant whispers
what sounds like “Dad” or “Daddy,” repeats himself a few seconds later, then raises his
voice and says, “Enough. Enough’s enough. Enough I said!” There is another five
seconds of movement and grunting, followed by a gunshot.
       Immediately after the shot is fired, appellant says, “Now you’re dead.” He pauses,
and repeats, “Now you’re dead. Told you.” Appellant comes back into view about 35
seconds later. Holding the gun by its barrel, he stands in front of a mirror and lifts up his
shirt to examine the bullet wound to his chest, remarking, “That ain’t good.” Continuing
to talk out loud, appellant mutters, “He shot me. I killed him. [Unintelligible statements]
Bye. Made a mistake.”
       Next, appellant retrieves a telephone and tries to call 911, not realizing his mother
is already on the line with a dispatcher. When the dispatcher asks who is speaking, he
identifies himself, says “I need you over here now,” and explains that his father shot him
in the chest. When asked where his father is, appellant replies, “He’s on the floor.” The
dispatcher asks three times if appellant’s father has been shot, but appellant ignores those
questions. He tells the dispatcher to “hurry” before hanging up the phone. As the video
draws to a close, appellant can be heard talking to himself: “… He tried to kill me. He
did. I don’t know if it’s going to work, [but it] might.”
       Testimony from the pathologist who performed an autopsy on James Murphy’s
body revealed that a “muzzle imprint” was found on the side of the decedent’s head,
indicating the gun was pressed against his skin when it was fired. The bullet entered the
left side of the skull, passed straight through the brain, and exited out the other side. The
pathologist’s testimony further confirmed, as did post-mortem photographs, that James
Murphy sustained “blunt force trauma” to his head and body prior to being shot. An
assortment of abrasions, contusions, and lacerations were visible throughout the face,

                                             14.
chest, arms, and legs. The extensive bruising led the pathologist to conclude the victim
had been struck multiple times prior to his death.
       Since appellant was not found to have any injuries other than those related to his
gunshot wounds, the prosecution argued that the fight between James Murphy and his son
had been one-sided, and appellant’s use of deadly force unjustified. The bullet that went
through the victim’s head was found lodged in a baseboard near his body, which the
prosecution cited as evidence of the bullet’s trajectory, the parties’ respective positions at
the time of the shooting, and proof of an “execution style” killing. Accordingly, the jury
was urged to find appellant acted with deliberation and premeditation.
       Appellant’s trial counsel argued for an acquittal on grounds of perfect self-
defense. The argument was presented as part of a broader theory that James and Barbara
Murphy had essentially conspired to murder their son, and antagonized him in order to
manufacture a justifiable homicide defense for themselves. This theory was summarized
in closing argument: “[James Murphy] was waiting for Geoff to physically assault one of
them. He was waiting for that right moment…. That sounds a lot like premeditation and
deliberation, not from Geoff, but from his parents. They were waiting for the right
moment to shoot him.”
       In support of its position, the defense pointed to the video created on August 8,
2013, two days prior to the victim’s death. During that recording, Barbara Murphy asks
her husband, “Jim, did you get the baseball bat out?” He responds affirmatively, and she
inquires about its location. Defense counsel argued that “bat” was the couple’s code
word for gun.2 The same video appears to show an object concealed in the back



       2 At trial, Barbara testified that she and her husband kept two firearms stored in an
attic space over the garage, and claimed she did not know James Murphy had retrieved
one of those guns until the moment he shot appellant on the morning of his death. She
also explained that her husband had been sleeping with a baseball bat next to his side of
the bed in case appellant tried to attack them in the middle of the night. However,

                                             15.
waistline of James Murphy’s pants, possibly a firearm, suggesting that he contemplated
shooting appellant well in advance of the subject incident. The defense further noted
Barbara Murphy’s behavior in the moments after her son had been shot, which could
fairly be interpreted as showing a lack of surprise and urgency. She had no verbal
reaction to the shooting, showed the presence of mind to reach for the cordless phone
almost immediately, and exited the house in an arguably casual manner.
       As for the self-defense argument, counsel relied on appellant’s warnings of
“enough” that were issued seconds before the fatal shooting. The defense hypothesized
that James Murphy retained possession of the firearm while fighting with his son and
continued to struggle against him during the final moments of his life. Construing the
physical evidence differently than the prosecution, counsel argued that “James was on top
of Geoff and still [had] the upper hand” immediately prior to being shot.
       Appellant raised an issue of diminished actuality by introducing evidence of a
mental disorder in conjunction with the argument that he never formed the specific intent
required for first degree murder. Luis Velosa, M.D., a retained psychiatrist, testified to
appellant’s affliction with bipolar disorder, which is a mental illness that can produce
symptoms of depression, mania, and psychosis. Dr. Velosa opined that appellant was
suffering from “bipolar disorder with psychotic symptoms” when he killed his father.
We further summarize the expert’s testimony in the Discussion, post.
       The jury found appellant guilty as charged and returned a true finding on the
firearm enhancement. He was sentenced to a combined term of 50 years to life in prison
for the first degree murder conviction (25 years to life) and firearm enhancement (a
consecutive 25-year term). The trial court imposed consecutive terms for the remaining
counts, which consisted of the mitigated two-year term for count 3, a one-year term for


homicide investigators did not report finding a baseball bat during their search of the
home.


                                            16.
count 4 (one-third of the middle term) and eight months for count 2 (same), resulting in
an aggregate sentence of 53 years and eight months to life. A notice of appeal was filed
on the day of sentencing.
                                      DISCUSSION
Jury Instructions
       Appellant complains about the trial court’s use of three jury instructions
concerning the law of self-defense. The instructions were adapted from the language in
CALJIC Nos. 5.55, 5.13, and 5.30, which respectively pertain to contrived self-defense,
justifiable homicide in defense of oneself or another person, and the use of self-defense
against an assault.3 There are numerous subparts to appellant’s arguments, but the
gravamen of his claim is that the instructions were unwarranted due to a lack of
evidentiary support, and giving them to the jury had a dual effect of endorsing the
prosecution’s position that James Murphy was initially justified in shooting appellant,
and weakening appellant’s own self-defense argument.


       3The jury received a modified version of CALJIC No. 5.55, which read as
follows: “The right of self-defense or defense of another is not available to a person who
seeks quarrel with the intent to create a real or apparent necessity of exercising self-
defense.”
The instruction given pursuant to CALJIC No. 5.13 was modified to address a scenario
involving attempted justifiable homicide: “Attempted [h]omicide is justifiable and not
unlawful when committed by any person in the defense of himself or another if he
actually and reasonably believed that the individual he attempted to kill intended to
commit a forcible and atrocious crime and that there was imminent danger of that crime
being accomplished. A person may act upon appearances whether the danger is real or
merely apparent.”
CALJIC No. 5.30 was given in its standard form: “It is lawful for a person who is being
assaulted to defend himself from attack if, as a reasonable person, he has grounds for
believing and does believe that bodily injury is about to be inflicted upon him. In doing
so, that person may use all force and means which he believes to be reasonably necessary
and which would appear to a reasonable person, in the same or similar circumstances, to
be necessary to prevent the injury which appears to be imminent.”


                                            17.
       There is nothing in the record to indicate that appellant objected to the instructions
he now challenges. The jury instruction conferences were not reported, and the clerk’s
transcript is devoid of any information concerning which pattern instructions were
requested by each party, or whether certain instructions were proposed by both sides or
given sua sponte. However, after the jury began its deliberations, the trial court made
statements about certain instructions it had modified and provided the parties with an
opportunity to make a record of any issues they wished to raise. No objections were
made. Furthermore, although appellant highlights the prosecution’s reliance on the
contrived self-defense instruction, we note defense counsel cited and quoted the same
instruction during closing argument to underscore the theory that appellant’s parents were
the ones who attempted to manufacture a need for self-defense.
       The Attorney General rightfully contends that all claims of instructional error have
been forfeited. Failure to object to a jury instruction forfeits the claim on appeal.
(People v. Virgil (2011) 51 Cal.4th 1210, 1260.) In his reply brief, appellant cites to
authorities that address circumstances under which an appellate court may consider
forfeited claims on their merits, apparently inviting us to exercise such discretion in this
instance. We decline to do so.
Limitation of Expert Witness Testimony
       During a break in the expert testimony of Dr. Velosa, the trial court heard
arguments regarding a previously overruled objection to a question and answer given by
the witness on direct examination. Upon further consideration, the court struck the
challenged testimony. Appellant claims this decision was erroneous and ultimately
swayed the jury’s verdict on the issues of malice and premeditation. We need not
determine the propriety of the trial court’s ruling since the alleged error was harmless
under any standard of prejudice.




                                             18.
Background
       Dr. Velosa’s trial testimony provided a summary of what bipolar disorder is and
how the condition manifests itself. In his words, it is “a major psychiatric illness” caused
by an absence or disturbance of neurotransmitters, which are chemicals in the human
brain. The resulting chemical imbalance produces symptoms that can include mood
swings ranging from extreme depression to extreme mania, hence the formerly used
labels of manic depression and “manic depressive illness.” The more acute the chemical
imbalance, the more severe the symptoms may be; the worst sufferers can experience
racing thoughts, intense agitation, paranoia, delusional beliefs, and psychosis.
       In forming his expert opinions, Dr. Velosa reviewed and relied upon appellant’s
medical records; watched the August 10, 2013 video of appellant interacting with his
parents; and evaluated appellant in person on November 22, 2013 and again on June 18,
2014, approximately two weeks prior to his trial appearance. He diagnosed appellant as
suffering from “bipolar disorder with psychotic symptoms,” meaning “the extreme level
of bipolar disorder where the person gets so impaired that he start[s] developing
psychotic symptoms.” Those symptoms were in remission at the time of Dr. Velosa’s
face-to-face evaluations because appellant’s condition had been stabilized through a
regimen of antipsychotic, antidepressant, and antianxiety medications administered to
him while he was in custody.
       The expert was asked to provide opinions regarding appellant’s mental health in
August 2013 based on a review of the video footage and the list of rules appellant had
posted in his parents’ home. Speaking to the latter item, Dr. Velosa said, “[T]his
particular document written by the defendant is sort of a classic document of a person
who is suffering from paranoi[a] and delusions and ideas of grandiosity,” all of which are
characteristic of bipolar disorder. After being asked to make a diagnosis based on
appellant’s behavior toward his mother, the expert testified as follows: “[The] best way to
answer this question would be it confirmed visually my clinical opinions that the

                                            19.
defendant at the time of the alleged offense was suffering from a psychiatric disorder
classified as a bipolar disorder with psychotic symptoms. It confirmed it. … And I must
say that his whole behavior was so psychotic. Every single – I mean, the way he
approached the whole situation. The way that he was treating his parents. The barbecue
lighter. The things that he was saying [were] totally psychotic.”
       Appellant’s claim on appeal is based on a subsequent exchange between
Dr. Velosa and defense counsel:
       Dr. Velosa: The visual part, there’s no question in my mind the defendant was
                     under some sort of a grandiose, paranoid delusion[] extremely,
                     which is part of the psychotic symptoms. The anger, the type of
                     situation. [She’s] defying the United States government just because
                     he doesn’t go [to] a grocery store.
       Counsel:      And the agitation as well?
       Dr. Velosa: That’s what is psychotic about it. Yes.
       Counsel:      Can bipolar disorder lead to impulsive behavior?
       Dr. Velosa: Yes.
       …
       Counsel:      Are people who are – are people who are experiencing a manic
                     episode more impulsive than normal, for example?
       Dr. Velosa: I would qualify [that] in our terminology we have impulsivity and
                     we have agitation, which is the highest level of impulsivity. When a
                     person is agitated that’s what perhaps is not just impulsive. [The]
                     person is thoroughly agitated. Whatever the person is doing at that
                     level. That’s not any reflection of what - of – it just explodes. Just
                     do it without any reflection for the consequences or anything like
                     that. And that’s the agitative level. That’s why we have,
                     unfortunately, psychiatric hospitals. Because when the person

                                            20.
                      comes to that level of agitation, not just plain impulsivity, they need
                      to be in a psychiatric unit.
       Counsel:       And would it be fair to describe the behavior that Geoff – the
                      interaction with Geoff and his mother, could that be impulsive?
       Prosecutor:    I’m gonna object. That’s asking the ultimate question of fact.
       Trial Court: Overruled. You may answer.
       …
       Dr. Velosa: The highest of the impulsive level, the agitated behavior, indeed.
       The prosecution later renewed its challenge to the admissibility of the final answer
in the above-quoted exchange. Before the court heard argument on that issue, defense
counsel elicited additional testimony relating to the question of deliberation and
premeditation. Counsel asked, “On August 10th of last year, from the video that you
saw… Is it possible that Geoff planned his conduct?” Dr. Velosa replied “No.” The
expert was then asked if appellant’s bipolar disorder, as evident from the video, affected
his reasoning. Dr. Velosa’s response was “Yes.”
       The prosecution argued that Dr. Velosa’s testimony regarding appellant’s level of
impulsivity was tantamount to an opinion regarding whether appellant acted with the
mental state required for first degree murder. The trial court was not entirely persuaded
by this argument, but nevertheless decided to strike the challenged testimony and allow
defense counsel to rephrase her original question. The jury was admonished as follows:
“I am striking part of the witness’s testimony from this morning’s session. The witness
had testified about his opinion as to whether the defendant was acting impulsively at the
time of the incident that’s depicted in the video involving he and his mother. The witness
did express an opinion that the defendant was acting at the highest level of impulsive
behavior with his mother. I’m striking that testimony, which means you must disregard it
and treat it as if it had not been spoken.”



                                              21.
      Following the admonishment, defense counsel successfully elicited the following
testimony:
      Counsel:     During the video when Geoff was yelling profanities at his mother in
                   her face, was that an episode of manic bipolar disorder?
      Dr. Velosa: Yes.
      Counsel:     When - during the video when Geoff had the lighter in his mother’s
                   face was that also an example of manic episode of bipolar disorder?
      Dr. Velosa: Yes.
      Counsel:     Does the fact that someone has bipolar disorder manic episode, does
                   that have significant impact on someone’s thought process?
      Dr. Velosa: Yes.
      Counsel:     And does that affect their ability to plan?
      Dr. Velosa: Yes.
      Counsel:     Hypothetically speaking, if someone gets shot and then after that
                   they are laughing and giggling, is that an example of a psychotic or
                   manic episode?
      Dr. Velosa: It is definitely an abnormal reaction after such a serious traumatic
                   event. Whether it is psychotic in nature or manic in nature I’m not –
                   it’s thoroughly unusual.
      Counsel:     Okay. The encounter between Geoff and his mother – the encounter
                   between Geoff and his parents, could that result – could it result in
                   an impulsive reaction from Geoff’s mental condition?
      Dr. Velosa: Yes.
      …
      Counsel:     Just to – just to clarify – just to be more specific, someone – and
                   correct me if I’m wrong. Someone who is psychotic is rational or
                   not rational?

                                          22.
       Dr. Velosa: Irrational. Irrational.
Analysis
       Because appellant did not raise an insanity defense, there was (and is) a conclusive
presumption of his mental capacity to commit the crimes for which he was convicted.
(§ 1016, subd. 6; People v. Elmore (2014) 59 Cal.4th 121, 141, fn. 12. (Elmore).) He
chose to present arguments concerning the distinct concept of “diminished actuality,”
which is a term used to describe the limited defense authorized by section 28. “This
provision states that evidence of mental disorders is admissible ‘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’ … [Citation.]
Section 28(a) bars evidence of the defendant’s capacity to form a required mental state,
consistent with the abolition of the diminished capacity defense.” (Elmore, supra,
59 Cal.4th at p. 139, original italics, fn. omitted.)
       Section 28, subdivision (d) provides: “Nothing in this section shall limit a 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.” A related statute, section 29, circumscribes the
permissible scope of expert testimony in support of a diminished actuality defense.4
Simply put, the expert cannot express an opinion as to whether the defendant had the
mental state required for the charged offense at the time of its commission. (People v.
Mills (2012) 55 Cal.4th 663, 672, fn. 4.)



       4 “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.” (§ 29.)


                                              23.
       “A trial court’s decision to admit or exclude evidence is reviewable for abuse of
discretion.” (People v. Vieira (2005) 35 Cal.4th 264, 292.) This standard applies to a
ruling on the admissibility of expert testimony under section 29. (People v. Pearson
(2013) 56 Cal.4th 393, 443-444 (Pearson).) The improper exclusion of expert testimony
is an error of state law and subject to the test for prejudice set forth in People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson). (See People v. Jones (2012) 54 Cal.4th 1, 63, 67-
68.) Appellant alleges that the trial court’s ruling implicated his constitutional right to
present a defense, but case law holds otherwise: “Where a trial court’s erroneous ruling is
not a refusal to allow a defendant to present a defense, but only rejects certain evidence
concerning the defense, the error is nonconstitutional and is analyzed for prejudice under
Watson, supra, 46 Cal.2d 818—i.e., the judgment should be reversed only if it is
reasonably probable that the defendant would have obtained a more favorable result
absent the error.” (People v. Garcia (2008) 160 Cal.App.4th 124, 133.)
       Respondent aptly directs our attention to People v. Breaux (1991) 1 Cal.4th 281,
where the California Supreme Court disposed of a similar claim for lack of prejudice
“[w]ithout deciding whether the psychiatrist’s testimony fell within the proscription of
section 29.” (Id. at p. 303.) Frankly, we fail to see how the trial court’s ruling could be
construed as having diminished the import of Dr. Velosa’s testimony. The expert
testified that appellant suffered from bipolar disorder and was in the throes of a psychotic
episode attributable to his mental illness at the time of the offense. Dr. Velosa’s
testimony clearly conveyed the opinion that appellant’s symptoms would have impaired
his ability to form rational thoughts or engage in meaningful reflection and deliberation.
That opinion is supported by the video footage, which was the most compelling piece of
evidence in the case. If a combination of the expert’s insights and visual proof of
appellant’s mental instability was not enough to move the jurors to return a verdict of
something less than premeditated murder, it is hard to imagine what else Dr. Velosa
could have said to change their minds. We are confident, however, that the jury would

                                             24.
have undoubtedly returned the same verdict had the challenged testimony not been
stricken.
Sufficiency of the Evidence
Standard of Review
       “ ‘To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” (People v. Jurado (2006) 38 Cal.4th 72, 118.) The standard of review is
“highly deferential” to the jury’s verdict. (People v. Lochtefeld (2000) 77 Cal.App.4th
533, 538.) It is the jury, not the appellate court, which must be convinced of the
defendant’s guilt beyond a reasonable doubt. This means if the evidence can reasonably
be interpreted in more than one way, the appellate court cannot substitute its own
conclusions for those of the trier of fact. (People v. Millwee (1998) 18 Cal.4th 96, 132.)
In other words, “reversal for insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the
jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Count 1
       Appellant disputes the sufficiency of the evidence of deliberation and
premeditation in connection with the verdict of first degree murder. His arguments focus
on the lack of proof regarding planning activity and/or a motive to kill for reasons other
than self-defense. He further maintains that the evidence of “his judgment [being]
clouded by severe mental illness” necessarily raised a reasonable doubt about his mens
rea.
       As a brief aside, we recognize that for many people the facts of this case will beg
the question of how appellant could have been convicted of any crime greater than heat
of passion manslaughter. The applicable law is summarized in People v. Beltran (2013)

                                            25.
56 Cal.4th 935: “Heat of passion is a mental state that precludes the formation of malice
and reduces an unlawful killing from murder to manslaughter. Heat of passion arises if,
‘ “at the time of the killing, the reason of the accused was obscured or disturbed by
passion to such an extent as would cause the ordinarily reasonable person of average
disposition to act rashly and without deliberation and reflection, and from such passion
rather than from judgment.” ’ [Citation.] Heat of passion, then, is a state of mind caused
by legally sufficient provocation that causes a person to act, not out of rational thought
but out of unconsidered reaction to the provocation. While some measure of thought is
required to form either an intent to kill or a conscious disregard for human life, a person
who acts without reflection in response to adequate provocation does not act with
malice.” (Id. at p. 942, fn. omitted, italics added.)
       Being intentionally shot in the chest by anyone, much less your own father, surely
constitutes adequate provocation for purposes of a heat of passion analysis. However,
“[i]t is not enough that provocation alone be demonstrated.” (People v. Sinclair (1998)
64 Cal.App.4th 1012, 1015.) The jury must also be convinced that the defendant’s ability
to reason was in fact obscured by passion at the time of the killing. (Ibid.) “ ‘[I]f
sufficient time has elapsed between the provocation and the fatal blow for passion to
subside and reason to return, the killing is not voluntary manslaughter … .’ ” (People v.
Breverman (1998) 19 Cal.4th 142, 163.) The jury in this case may have accepted that
appellant was provoked, but obviously believed he kept or regained the mental fortitude
to refrain from killing his father.
       The issue on appeal is not the presence or absence of provocation, but whether
appellant deliberated and premeditated before firing the gun. Premeditation
“encompasses the idea that a defendant thought about or considered the act beforehand.”
(Pearson, supra, 56 Cal.4th at p. 443.) Deliberation “ ‘ “refers to careful weighing of
considerations in forming a course of action.” ’ ” (Ibid.) “ ‘Premeditation and
deliberation can occur in a brief interval. “The test is not time, but reflection. ‘Thoughts

                                              26.
may follow each other with great rapidity and cold, calculated judgment may be arrived
at quickly.’ ” ’ ” (People v. Sanchez (2001) 26 Cal.4th 834, 849.)
       The case law is replete with examples of deliberation and premeditation occurring
during a short period of time. In People v. Mayfield (1997) 14 Cal.4th 668,5 where the
defendant wrested a gun from a police officer and shot the officer in the head during a
brief altercation, it was held that “a rational trier of fact could conclude from the evidence
that before shooting [the officer] defendant had made a cold and calculated decision to
take [his] life after weighing considerations for and against.” (Id. at pp. 767-768.)
Likewise, in People v. Mendoza (2011) 52 Cal.4th 1056 (Mendoza), the high court found
sufficient evidence of premeditation under circumstances where the defendant killed his
victim within a few minutes of their initial encounter. (Id. at p. 1069-1074.) The
Mendoza opinion also notes that a single gunshot to the head can support the inference of
a deliberate intent to kill. (Id. at p. 1071.)
       Appellant’s arguments purport to rely on People v. Anderson (1968) 70 Cal.2d 15
(Anderson), which identifies three categories of evidence that are probative of
deliberation and premeditation: proof of planning, motive, and the manner of killing. (Id.
at pp. 26-27.) However, “[t]hese three categories are merely a framework for appellate
review; they need not be present in some special combination or afforded special weight,
nor are they exhaustive.” (People v. Booker (2011) 51 Cal.4th 141, 173.) Although not
required to sustain the conviction, the record before us contains substantial evidence
under each of three Anderson categories.
       “[A] killing resulting from preexisting reflection, of any duration, is readily
distinguishable from a killing based on unconsidered or rash impulse.” (People v.
Solomon (2010) 49 Cal.4th 792, 813.) The most probative evidence of premeditation is


       5Disapproved on another ground as stated in People v. Scott (2015) 61 Cal.4th
363, 390, fn. 2.


                                                 27.
found at approximately 18 minutes and 37 seconds into the August 10, 2013 video, when
appellant says, “I’m gonna kill you. I’m gonna kill you.” These words show that he
“thought about or considered the act beforehand.” (Pearson, supra, 56 Cal.4th at p. 443;
People v. Steele (2002) 27 Cal.4th 1230, 1250 [defendant’s statement of “Put the phone
down or I’ll kill you” was evidence of planning].) He does not shoot his father until
nearly a minute later, when the video counter reaches 19 minutes and 33 seconds. In the
interim, at 18 minutes and 40 seconds, appellant asks, “How did you get this gun?” The
jury may have interpreted this question as indicating appellant had disarmed his father by
that point in time, thus supporting its conclusion that the use of lethal force was
unnecessary and gratuitous.
       There was testimonial and photographic evidence which showed the victim was
pummeled prior to being shot. Beginning at 18 minutes and 54 seconds into the video,
the viewer hears at least four heavy blows being landed, with one of the impacts
punctuated by appellant’s statement of “Fuck you.” This is followed by the distinct
sound of appellant spitting, and one can’t help but assume he is projecting saliva at his
father. The audio paints a vivid picture in the mind’s eye, which for the jury was the
image of a man acting with cold, calculated malice. A full 33 seconds pass from that
point until the moment when the fatal shot is fired.
       Appellant insists there could have been no motive for killing his father other than
self-defense. This argument ignores the obvious possibility of revenge, considering the
victim had just tried to kill him. Incidentally, acting out of a passion for revenge does not
reduce the crime of murder to manslaughter. (People v. Gutierrez (2002) 28 Cal.4th
1083, 1144; People v. Williams (1995) 40 Cal.App.4th 446, 453.)
       In terms of how the crime was committed, appellant submits that “the manner of
killing was not particular or exacting.” He then contrasts the facts of this case with those
in People v. Nazeri (2010) 187 Cal.App.4th 1101, where the defendant killed his wife and
mother-in-law by stabbing each of them more than 20 times with a knife. (Id. at pp.

                                             28.
1103-1104.) The comparison is not helpful. Here we are concerned with evidence of an
execution-style killing, i.e., death by a bullet fired from a gun placed directly against the
victim’s head. (People v. Bloyd (1987) 43 Cal.3d 333, 348.) A killing of this nature is
generally viewed as the quintessential example of deliberation and premeditation, albeit
more so in cases where there is no evidence of a prior struggle. (Ibid; People v. Romero
(2008) 44 Cal.4th 386, 401.) As stated in People v. Lenart (2004) 32 Cal.4th 1107, 1127,
“an execution-style killing may be committed with such calculation that the manner of
killing will support a jury finding of premeditation and deliberation, despite little or no
evidence of planning and motive.”
       Proof of appellant’s mental illness does not override the evidence of planning and
reflection. Although Dr. Velosa’s testimony strongly supported a diminished actuality
defense, the jurors were not required to accept his testimony as true or conclusive.
(§ 1127b.) A jury “may disregard the expert’s opinion, even if uncontradicted, and draw
its own inferences from the facts.” (Kennemur v. State of California (1982)
133 Cal.App.3d 907, 923; accord, People v. Perez (1992) 4 Cal.App.4th 893, 900 [“A
jury is not required to accept the testimony of an expert witness even if he or she is the
sole expert testifying at trial.”].)
       In summary, twelve jurors came to the unanimous conclusion that appellant
thought about what he was doing before he killed his father, and was able to reflect upon
his actions despite having symptoms of mental illness and a reason to feel provoked by
what the victim had done to him. A different jury might have interpreted the facts
another way, but the record does contain sufficient evidence of deliberation and
premeditation. We must therefore affirm the conviction of first degree murder.
Count 2
       In his final argument, appellant claims there is insufficient evidence that he made
criminal threats against his mother. He acknowledges issuing threats of bodily harm, but
characterizes those statements as mere “emotional outbursts.” His argument is untenable.

                                             29.
       Section 422 makes it a crime to “willfully threaten[] to commit a crime which will
result in death or great bodily injury to another person, with the specific intent that the
statement … is to be taken as a threat, even if there is no intent of actually carrying it out,
which, on its face and under the circumstances in which it is made, is so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened, a gravity of
purpose and an immediate prospect of execution of the threat, and thereby causes that
person reasonably to be in sustained fear for his or her own safety . . . .” (§ 422,
subd. (a).) The statute “was not enacted to punish emotional outbursts[;] it targets only
those who try to instill fear in others.” (People v. Felix (2001) 92 Cal.App.4th 905, 913.)
Appellant attempts to connect the latter principle to the argument that he did not intend to
“inflict serious evil on his parents.” However, the intent to carry out a threat is not an
element of the offense. (People v. Butler (2000) 85 Cal.App.4th 745, 759.)
       Appellant’s statements to his 69-year-old mother included threats to “shut [her]
down totally,” “stomp [her] ass,” and “knock [her] upside the fucking head.” The threats
were issued in the context of him demanding to be driven to the grocery store. The jury
could have reasonably concluded appellant intended for his statements to be taken
seriously and instill fear in his mother, thereby motivating her to comply with his
demands. As so construed, the evidence is sufficient to support a conviction under
section 422.




                                              30.
                                 DISPOSITION
     The judgment is affirmed.



                                               _____________________
                                                           GOMES, J.
WE CONCUR:


 _____________________
HILL, P.J.


 _____________________
KANE, J.




                                     31.
