Filed 2/25/14 P. v. Mears CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136101
v.
DARYL K. MEARS,                                                      (Marin County
                                                                     Super. Ct. No. SC173521A)
         Defendant and Appellant.




                                              I. INTRODUCTION
         Daryl Mears was convicted of the second degree murder of Larry Robertson.
(Pen. Code, § 190, subd. (a).)1 The jury also found true an enhancement allegation that
Mears personally used a deadly weapon, a knife. (§ 12022, subd. (b)(1).) Mears was
sentenced to a total prison term of 16 years to life in prison. On appeal, Mears contends
the judgment must be reversed because the trial court made several evidentiary and jury
instruction errors and the prosecutor committed prejudicial misconduct. We reject these
contentions and affirm the judgment.




         1
             Unless otherwise noted, undesignated statutory references are to the Penal Code.


                                                             1
                               II. STATEMENT OF FACTS
A.     The Prosecution Case
       1.       Mears Stabbed Robertson
       On December 15, 2010, Mears encountered Robertson in a dark tunnel, stabbed
him more than 60 times and then fled the scene. Two witnesses who knew both men
testified about the details of the incident.
                a.     Willie Smith
       Willie Smith was good friends with both Mears and Robertson. On December 15,
2010, he and Mears were together at an apartment complex in Marin City. Early that
evening, they saw Robertson in the parking lot and said hello before Robertson got into a
car with some friends and drove away. Then Mears said: “ ‘The next time I see him, I’m
going to gut him.’ ” At the time, Smith did not think that Mears was serious about
attacking Robertson.
       After Robertson left, Smith and Mears walked to a convenience store in Sausalito
which required them to travel through a long dark tunnel under the 101 freeway. On the
way back from the store, as they approached the tunnel, they saw Robertson walking
ahead of them toward Marin City. Mears, who was a few steps in front of Smith, pulled a
knife and hid it behind his leg. The three men continued to walk toward Marin City
without saying anything until they reached the middle of the tunnel. At that point, Mears
said to Robertson, “I heard you have been snitching on me.” Robertson responded: “I
didn’t say that. I just heard that.” Then Mears said, “I’ll gut you right now.” Robertson
did not make any verbal threat or give any response to this remark. Then Mears stabbed
Robertson many times “[e]verywhere” on his body. Robertson did not have a weapon
and Smith did not see him make any aggressive movement toward Mears before the
attack began.
       Initially, Smith was shocked by Mears’s conduct; he froze and said nothing.
However, at some point during the attack, he told Mears to stop, but Mears ignored him.
At trial, Smith could not recall how many times Mears stabbed Robertson or where he
stabbed him first. Smith testified that Robertson never said anything during the attack


                                               2
and that when he fell to the ground, Mears did not stop. At some point, Mears did turn
and walk a few steps away, but he returned and stabbed Robertson twice in the head.
Then Mears and Smith ran away, toward a church in Marin City.
              b.     Latanya Wiggins
        On December 15, 2010, at around 8:20 p.m., Latanya Wiggins and her husband
drove through the tunnel toward Sausalito while on their way to dinner. Midway through
the tunnel, Wiggins, who was sitting in the passenger seat, saw a man stabbing another
man. Wiggins knew both Mears and Robertson, although she did not immediately realize
they were the men involved in the stabbing incident.
        Wiggins testified that she saw a man hunch over a person who was on the ground
and repeatedly stab him, “just over and over and over again.” She recognized the
assailant, but did not immediately put Mears’s name to the face. She told her husband to
make a u-turn while she called 911. As they drove back into the tunnel, Mears was
walking away, but he turned back and repeatedly kicked the man on the ground and then
stabbed him in the head. Wiggins jumped out of the car and screamed, “What are you
doing? Are you just going to stab him?” Before he ran off, the assailant looked right at
Wiggins and she recognized him as Mears.
        Wiggins and her husband approached the man on the ground, who was not moving
and looked dead. Then he started to moan, pulled down the hood of his jacket, and
Wiggins realized he was Robertson. He pleaded for help, saying he could not breathe.
Wiggins testified that his cuts were “huge” and “his flesh was like hanging. It was really
bad.”
        2.    Mears Fled the Scene
        When Marin County Deputy Sheriff Brenton Schneider arrived at the scene,
bystanders pointed him in a northward direction where he found two suspects fleeing on
foot. Smith complied with Schneider’s command to stop and get on the ground. Mears,
who was covered in blood, stopped about 15 to 20 feet away from the officer but he did
not comply with commands to show his hands and get on the ground. Mears ignored
additional commands as he pulled off his bloody sweatshirt and began walking toward


                                            3
the officer, with his hands in his waistband. Twice he yelled “Shoot me. Just fucking
shoot me.” Then he turned and ran away, jumping a small fence that surrounded an
apartment complex.
       Meanwhile, Schneider’s partner, Deputy Matelli, had arrived at the opposite side
of the fence. He saw Mears climb the fence and told him to stop and get on the ground.
Again Mears ignored the orders, and he repeatedly told the deputy to just shoot him.
Eventually, Matelli used his taser to take Mears into custody. Mears had lacerations and
a cut on his hand and another cut on his upper thigh. He was taken to the hospital where
he was treated for his lacerations and for trauma and received stitches for his thigh
wound.
       3.        Robertson’s Injuries Caused his Death
       Robertson was 5 feet, 10 inches tall and weighed around 300 pounds. The autopsy
report documented 41 stab wounds and 27 incisions on his body. 2 One stab wound
entered the body cavity at the abdomen. Although many of the other wounds were large
and “widely gaping,” they were classified as “superficial wounds,” because they did not
enter the body cavity or did not involve a major artery, vein or “nervous structure.”
       Evidence was presented at trial that multiple superficial wounds are life
threatening, especially when they involve the scalp, as this set of injuries did. As the
pathologist who performed Robertson’s autopsy testified at trial, multiple superficial
wounds cause massive trauma to the body, impair the “coagulation” function, and destroy
the blood system of the body.
       The cause of Robertson’s death was the stab wound to the abdomen in association
with the other stab wounds which, exacerbated by Robertson’s obesity, led to
“exsanguination,” a loss of blood causing shock and cardiac arrest. As the testifying
pathologist explained to the jury, “bleeding is a mechanism whereby death was produced.
But the cause of death, ultimately, is the stab wound to the abdomen in association with
all these other stab wounds, or you could say multiple sharp force injuries.”

       2
            An incision is a laceration which is longer than it is deep.


                                                 4
       4.     Police Recovered Mears’s Knife
       Police recovered a small serrated pocket knife from a trash can at the crime scene.
Blood on the knife matched both Robertson and Mears.3 At trial, Smith identified the
knife as the weapon that Mears used to stab Robertson. He testified that the knife
belonged to Mears, who had shown it to him a few weeks before the fatal attack. The
pathologist who performed Robertson’s autopsy confirmed that this knife could have
caused the injuries that resulted in Robertson’s death.
C.     The Defense Case
       Mears testified on his own behalf, offering a very different version of his
encounter with Robertson.
       Mears told the jury that in 2010 he was living in Mill Valley where he had grown
up. Earlier that year, he had been “involved” in “some automobile burglaries.” When
Mill Valley police questioned him about the crimes, Mears confessed and implicated
others, including a man named Jeremy Weaver. During the interview, he told the officers
that he was concerned about “[r]etaliation for snitching,” but they told him that nobody
would “get a hold of [his] testimony.” Ultimately, Mears pleaded guilty to possession of
stolen property and served a jail sentence.
       Mears testified that after he was released from jail, he was “pursued by people in
the community” who were mad at him “for snitching on my accomplice.” Mears got into
fights, and felt he had to sneak in and out of his home to avoid altercations. Mears also
testified that he was “threatened” by as many as 15 people, one of whom was Robertson
who threatened that “he was going to whoop my ass and get me when he could.” Mears
was concerned by this threat because he knew that Robertson was in a gang.
       On the evening of December 15, 2010, Mears saw Robertson when he and Smith
were walking to the store in Sausalito and they exchanged greetings. But, when they saw
him a second time while walking back through the tunnel, Robertson confronted Mears


       3
         A DNA analysis of 15 different blood stains on Mears’s sweatshirt all belonged
to Robertson. Blood stains on Mears’s shoes matched both Robertson and Mears.


                                              5
and accused him of “snitching on Jeremy Weaver.” Mears denied that he had, but
Robertson claimed he had “seen the paperwork.” Mears responded by saying something
like “Whatever. Do something about it,” at which point the two men started fighting.
       According to Mears, Robertson pulled out a knife and cut Mears across the leg.
Mears slapped the knife out of his hand and was able to retrieve it, but then Robertson
pulled it back, cutting Mears in the hand. Mears grabbed the knife a second time and was
able to wrestle it away by punching Robertson in the face. Then Mears started stabbing
Robertson “apparently a lot of times.” Robertson fell to the ground and Mears recalled
stabbing him again, but, he told the jury, “at that point, it gets like blurry, dark. . . . I
didn’t realize how many times I stabbed him, where I was stabbing him. I didn’t realize
about that, did not know any of that.” Mears testified that he did not know why he
stabbed Robertson “so many times,” but recalled that he finally stopped because he heard
Wiggins yelling at him. And then he left; he could not run, but he walked away.
       Defense counsel asked Mears how he felt about causing Robertson’s death. Mears
offered the following response: “I feel horrible about it. But, also, I feel that his action
caused my reaction. If he did not pull the knife and try to stab me, I wouldn’t have got
the knife from him and stabbed him back.” Under cross-examination, the prosecutor
asked whether it was Robertson’s fault that Mears killed him. Mears said no, but testified
that it was Robertson’s “fault that he pulled the knife and tried to stab me.” When
pressed, Mears acknowledged that he “played a part” in Robertson’s death because “I
stabbed him,” but Mears maintained that Robertson also played a part because he “pulled
the knife,” and, “If he did not pull the knife, I wouldn’t have had to stab him.” Mears
testified that he was defending himself; that he acted in self-defense.
       The prosecutor asked if Mears was acting in self-defense when he stabbed
Robertson in the eye and the face and the back. Mears responded that he did not
remember doing those things. Then the following exchange occurred:
       “Q      What about when you walked away after stabbing him 50, 60, 65 times,
walked away, turned around, came back and stabbed him in the head, is that still self
defense?


                                                 6
       “A     No, I wouldn’t say that was. I don’t remember doing that. What I
remember is Latanya yelling at me and then me leaving. . . .
       “Q     That wasn’t my question. My question was, after you stabbed him over 65
times and you walked away from him, took five, six steps away from him, turned around,
walked back and stabbed him in the head, were you acting in self defense?
       “A     No, that wasn’t self defense, no.”
       After Mears completed his trial testimony, the defense recalled Deputy Schneider,
who testified that Robertson had been identified as an “associate” of a criminal street
gang in Marin City called the 200 Block Young Hogs. Under questioning by the
prosecution, Schneider explained that an associate is somebody who “hangs out with
other gang members” and that a person could be identified as such simply because he had
been seen with a gang member. Schneider also testified that Robertson had never been
identified as a gang member. Furthermore, Schneider had met Robertson in the past and
considered him to be “one of the most respectful people in Marin City.”4
D.     Trial Proceedings
       The April 2012 jury trial was conducted before the Honorable Andrew E. Sweet.
The prosecution theory at trial was that Mears committed first degree murder; that he
killed Robertson out of anger because Robertson and other members of their
“community” had been calling Mears a “snitch.” During closing argument, the
prosecutor emphasized that the evidence did not support Mears’s claim of self-defense.
Mears’s testimony on that subject was not credible and was inconsistent with other
witness testimony, the prosecutor asserted. Furthermore, Mears himself admitted that he
was not acting in self-defense when he returned to Robertson’s body and stabbed him
twice more in the head.
       The defense conceded Mears killed Robertson but disputed that he was guilty of
murder. During his opening statement to the jury, defense counsel acknowledged that


       4
        In its rebuttal case, the prosecution called witnesses who testified that Robertson
was kind and gentle, that he was not violent and that he did not carry a weapon.


                                             7
Mears stabbed Robertson approximately 70 times and that Robertson “died by reason of
those stab wounds,” but counsel argued that Mears did not commit a premeditated,
deliberate act because he acted “out of fear and anxiety suffered by reason of being
branded a government police informant . . . a snitch.”
       Thus, the defense theory developed at trial and articulated to the jury during
closing argument was that Mears was guilty of voluntary manslaughter, both because he
acted in the heat of passion and because he had an imperfect self-defense for the crime.
During his closing argument, defense counsel maintained that the primary material
dispute in this case pertained to “the intent element” of murder, and that the evidence
bearing on that issue was largely “circumstantial.” He urged the jury to “get past the gore
and carefully analyze the evidence that bears on the intent element,” and he argued this
evidence did not support the allegation that Mears acted out of anger, but established
instead that he acted out of “fear after being labeled a snitch.”
       Defense counsel also maintained that Mears’s own testimony established that he
thought he was defending himself, even if that belief was unreasonable. Counsel argued
that Mears’s admission at trial that he was not attempting to defend himself when he
walked away and then turned back and stabbed Robertson in the head was not relevant
because those injuries did not cause Robertson’s death. As counsel explained: “But then
that’s not the stab that caused the death. As the Doctor testified, those were superficial
wounds to the head and face. The bad damage had already been done. So when he walks
away and comes back, that does not prove he had intent or malice or was acting
deliberately. It just shows that he was befuddled. He was confused. He was enraged.
He was impassioned and he killed somebody that he should not have.”
       On May 2, 2012, the jury was instructed regarding the law of first degree murder,
second degree murder and voluntary manslaughter, received special verdict forms for
each of these three offenses, and began its deliberations. On May 7, the jury returned a
verdict finding Mears guilty of second degree murder.




                                              8
                                   III. DISCUSSION
       Mears purports to advance six distinct claims of trial court error and he argues that
he is entitled to have these claims considered in the order he presents them in his
appellate briefs. Indeed, Mears complains in his reply brief that the People have created
unnecessary confusion and mischaracterized his claims by reorganizing appellant’s
arguments, and then responding to them in a different order than the claims were raised.
From our perspective, the issues addressed in Mears’s appellate briefs are not logically
ordered. Thus, we decline to follow that pattern, although we do address all of his
substantive claims of error.
A.     In Limine Rulings
       Mears challenges two evidentiary rulings the trial court made when resolving the
numerous pre-trial motions that were filed in this case. We review these rulings under
the abuse of discretion standard of review. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-
10 [admission or exclusion of evidence reviewed for abuse of discretion]; (People v.
Valdez (1997) 58 Cal.App.4th 494, 506 [same standard applies to expert evidence].)
       1.     Medical Malpractice Evidence
              a.     Background
       Prior to trial, the prosecution filed a motion to exclude evidence of medical
malpractice. At a hearing on that motion, the prosecutor explained that allegations had
been made that the emergency room doctors who treated Robertson did not follow proper
“protocols,” and if those protocols had been followed, Robertson may not have died. The
primary allegation that had surfaced was that a CT scan could have revealed the extent of
the internal injury caused by the stab wound to Robertson’s abdomen and led to a
different course of treatment.
       The defense opposed the prosecutor’s motion. Defense counsel argued that the
medical treatment Robertson received was relevant to the issue of intent. As counsel
explained, “It’s not so much what happened to him at the hospital but the depth
configuration and natures of these wounds [were] relevant on the intent element. When



                                             9
you stab somebody one way, you could intend to kill them. When you stab somebody
another way, maybe you didn’t.”
       The trial court asked defense counsel to clarify “what about what happened or did
not happen at [the hospital] is relevant to this case and why.” Defense counsel responded
that he was “reluctant to discuss the specifics of [his] thought processes on that subject,”
but he acknowledged that the failure to perform a CT scan was not relevant and he agreed
not to mention it. After further discussion, defense counsel reiterated that the nature of
the stab wounds and what the doctor did to “repair the vast majority of them could be
indicative of an intent other than an intent to kill.”
       Ultimately, the trial court ruled that evidence of possible medical malpractice was
excluded. The court reasoned that death is a foreseeable consequence of inflicting 67 to
72 stab wounds on a person and, therefore, under any conceivable scenario, the
defendant’s conduct was a concurrent cause of death. Furthermore, the court found that
any relevance of the possible “mess-ups at the hospital” was outweighed by the factors
set forth in Evidence Code section 352. However, the court clarified that it was not
excluding evidence regarding the nature of Robertson’s wounds, including their depth,
configuration and location. As the court explained, “I think it is admissible how
superficial—there is death, also—but how superficial these wounds were and what it
would take to repair them.” The court also stated that it was willing to reconsider its
ruling regarding the malpractice evidence if either side presented it with any additional
information.
               b.     Analysis
       Mears contends the trial court’s in limine ruling was error because evidence of
malpractice was relevant and admissible to show a potential intervening cause of
Robertson’s death.
       “ ‘If a person inflicts a dangerous wound on another, it is ordinarily no defense
that inadequate medical treatment contributed to the victim’s death. [Citations.]’ ”
(People v. Scott (1997) 15 Cal.4th 1188, 1215 (Scott); see also People v. McGee (1947)
31 Cal.2d 229, 240, 243.) The only exception to this rule is that “grossly improper”


                                               10
medical treatment “may discharge liability for homicide if the maltreatment is the sole
cause of death and hence an unforeseeable intervening cause. [Citations.]’ [Citation.]”
(Scott, supra, 15 Cal.4th at p. 1215.)
       In the present case, the pathology evidence established that Mears’s conduct was a
cause of Robertson’s death. Furthermore, the only evidence of medical malpractice was
an allegation that Robertson was denied proper treatment because he did not receive a CT
scan. As defense counsel appears to have conceded at trial, the failure to take a CT scan
was not substantial evidence of grossly improper medical treatment. Even if we could be
persuaded otherwise, that omission by the emergency room doctors was obviously a
foreseeable consequence of rendering emergency treatment to a victim who suffered so
many injuries during this extremely violent attack. Thus, as the trial court explained,
there was no evidence which could lead a reasonable jury to conclude that the 72 stab
wounds that Mears inflicted were not a concurrent cause of Robertson’s death. Under
these circumstances, the failure to give Robertson a CT scan was not sufficiently
probative of a material issue to outweigh other factors including the possibility of
confusing the jury and the time it would take to explore this collateral issue. Thus, the
court did not abuse its discretion by excluding this evidence under Evidence Code section
352.
       On appeal, Mears contends that the trial court’s ruling was error because it
deprived the defense of the “opportunity” to present evidence which could have
established that malpractice was an “unforeseeable intervening cause” of Robertson’s
death. To support this theory, Robertson relies on authority holding that proximate cause
is generally a question of fact for the jury to decide. (Citing People v. Roberts (1992) 2
Cal.4th 271, 320).
       Mears’s use of the word “opportunity” makes his argument patently vague. To the
extent he is arguing the defense was entitled to a jury determination regarding whether
the missing CT scan was an unforeseeable intervening cause of death, we disagree for
reasons we have already explained. If, on the other hand, Mears is suggesting that he was
deprived of the opportunity to prove that Robertson received some other medical


                                             11
treatment for his injuries which was grossly improper, the record shows otherwise. The
trial court was very clear and careful about the scope of its in limine ruling. The defense
was expressly advised that the court would reconsider the issue if any additional evidence
or information was presented to it.
        Therefore, we reject Mears’s contention that the trial court abused its discretion by
excluding evidence that Robertson did not receive a CT scan as part of the treatment for
the wounds that Mears inflicted.
        2.        Defense Expert Testimony
                  a.        Background
        Prior to trial, the defense filed a memorandum in which it made an “offer of proof”
regarding expert testimony it intended to elicit from Gregory Lee, a “criminal justice
consultant” who had previously worked for the Federal Drug Enforcement Agency. The
offer consisted of a summary of Mears’s account of his interactions with Mill Valley
police when he informed on Jeremy Weaver in this prior automobile theft case peppered
with snippets of Lee’s opinions quoted from a report he (presumably) prepared.5
        In its motion, defense counsel stated that “Mr. Lee will testify, in a nutshell, to
‘Daryl’s fears and experiences after being identified as a person who informed police
about his accomplices . . . .’ ” The defense also advised the court that it would elicit
Lee’s opinion that “regardless of who started the fight, [Mears] ‘had a good reason to fear
for his safety . . . .’ ”
        The defense proposed that Lee would offer his expert opinion not just about
Mears’s specific “ ‘fears and experiences,’ ” but also that “all informants, willing or
unwilling, gang or non-gang, fear discovery and retaliation. He will reinforce through his
experience that all this is real that it happens all the time, it’s not just an urban myth, TV
plot line, or isolated event.” The defense argued that this expert testimony was relevant
to explain Mears’s mental state and to support his self-defense theory.



        5
             The report is not included in the appellate record.


                                                12
       Prior to jury selection, the trial court made preliminary rulings on issues pertaining
to the expert witnesses, including Mr. Lee. The court observed that evaluating whether
Lee’s opinions were admissible was premature until evidence was elicited that Mears was
an informant and that he had been labeled a snitch. However, the court also opined that if
those predicate facts were established at trial, it appeared that most of Lee’s opinions
would be excluded for one of two reasons.
       First, Lee’s opinions addressed matters of common experience. As the court
explained, “I don’t think that his report, which is a proffer, essentially, establishes that he
would tell this jury anything beyond common experience [that] would need expert
testimony. [¶] In other words, it’s common experience that people who inform on others
in a criminal context can be labeled snitches and can fear for retaliation. We don’t need
an expert to tell us that.”
       Second, Lee had also opined that the police acted inappropriately when they
elicited and used information from Mears in the earlier criminal case. The court made a
preliminary ruling that this opinion would be excluded under Evidence Code section 352.
The court reasoned that Lee’s opinion about police conduct in the earlier case was “not
relevant to the charges here, what the police did, how they got him to give information
about others, criminally, and the like, and it would be confusing to the jury and time
consuming to have an entire corollary proceeding about whether or not and how and why
and when and what the police did with Mr. Mears in that previous incident.”
       A few days later, during the hearing on in limine motions, the court asked defense
counsel for a response to its preliminary ruling regarding Lee’s expert testimony.
Defense counsel argued that Lee’s testimony was relevant and admissible because the
fear a person experiences when he is labeled as a “snitch” is outside the common
experience of the jury.
       The trial court asked defense counsel to articulate what opinion[s] the defense
intended to elicit from Lee. Counsel responded that Lee would testify that the Mill
Valley police who handled Mears’s prior case had put him in a position in which he was
“justifiably afraid, justifiably in fear of his life . . . .” To explain this opinion, he would


                                               13
describe what happened in the earlier case: Mears implicated Jeremy Weaver; the police
promised to keep Mears’s identity confidential; the police broke that promise; and Mears
was left in the untenable position of fearing for his life and not having any governmental
protection.
       The trial court expressed continued concern about the ambiguous nature of
defense counsel’s characterization of Lee’s opinion about the danger of snitching. As the
court explained, if Lee intended to testify that this particular defendant had a reasonable
fear, his opinion was “dangerously close to inadmissible expert testimony.” On the other
hand, the more general Lee made his opinion regarding the fear associated with being a
snitch, the more closely he would address a matter of common experience that did not
require any expertise.
       Ultimately, the court reiterated its findings that (1) the danger and fear associated
with being an informant in a criminal case was not the proper subject of an expert
opinion, and (2) Lee’s opinion regarding allegedly “nefarious” behavior by the police in
the prior case was irrelevant and properly excluded under Evidence Code section 352.
Thus, the court ruled that it would stand by its tentative ruling to exclude Lee’s
testimony, although, once again, without prejudice to reconsider the issue as the trial
progressed.
              b.     Analysis
       To be admissible, expert opinion testimony must relate “to a subject that is
sufficiently beyond common experience that the opinion of an expert would assist the
trier of fact . . . .” (Evid. Code, § 801, subd. (a).) The expert’s opinion must also be
based on matter that “is of a type that reasonably may be relied upon by an expert” in
formulating an opinion on the subject to which his testimony relates. (Evid. Code, § 801,
subd. (b).) “An expert, however, may not testify that an individual had specific
knowledge or possessed a specific intent. [Citation.]” (People v. Garcia (2007) 153
Cal.App.4th 1499, 1513.) Furthermore, the trial court retains discretion to determine
whether otherwise admissible expert testimony should be excluded under Evidence Code
section 352. (People v. Gonzalez (2006) 38 Cal.4th 932, 945 (Gonzalez).)


                                             14
       Applying these rules here, we find that the trial court did not abuse its discretion.
The court made a preliminary ruling about the opinions expressed or implied in Lee’s
report. First, it found that Lee’s opinion regarding the propriety of police conduct in the
prior case was not only irrelevant but would be confusing and time consuming as it
would require a collateral proceeding about what happened in the prior case. On appeal,
Mears does not articulate any theory of relevancy about this aspect of Lee’s opinion or
indeed even question the trial court’s Evidence Code section 352 ruling.
       Second, the court found that Lee’s opinion that a person who informs in a criminal
case puts himself at risk would likely not be admitted for several reasons. First, the jury
did not need expert testimony to understand that fact. Second, the opinion the defense
proposed to elicit from Lee was too vague to determine whether testimony on that subject
was even potentially admissible; if Lee tailored his opinion to address Mears’s actual
state of mind when the incident occurred, it would be inadmissible (see Garcia, supra,
153 Cal.App.4th at p. 1513); if his opinion was too general, it would become a matter of
common experience that would not be useful to the jury. (Evid. Code, § 801, subd.(a).)
       On appeal, Mears ignores the circumstances suggesting that Lee intended to offer
an improper opinion regarding Mears’s actual state of mind. Instead, he makes the more
general claim that expert evidence about the dangers of being an informant was relevant
to explain Mears’s state of mind and would have assisted the jury in “understanding the
magnitude” of the risk associated with being a snitch. To support this claim, Mears relies
primarily on Gonzalez, supra, 38 Cal.4th 932.
       In Gonzalez, supra, 38 Cal.4th 932, the defendant was convicted of murdering two
members of a rival gang. To establish that the defendant was the shooter, the prosecution
relied on eyewitness identifications that were repudiated at trial. The prosecutor also
presented evidence that the defendant told a fellow gang member that he was the shooter,
which was also repudiated at trial. (Id. at p. 939.)
       On appeal, the Gonzalez court rejected an argument that the trial court erred by
admitting testimony from the prosecutor’s gang expert that a gang member who is called
to testify against a fellow gang member would likely be the subject of intimidation from


                                             15
both his own gang as well as a rival gang. (Gonzalez, supra, 38 Cal.4th at p. 945.) The
court found that this expert opinion was relevant because it would assist the jury in
deciding which version of the witness testimony was truthful, the “initial” identifications
or the “later repudiations.” (Id. at p. 946.) The court also found that the gang expert’s
testimony “was quite typical of the kind of expert testimony regarding gang culture and
psychology that the court has discretion to admit.” (Id. at p. 945.)
       As the Gonzalez court explained, the question “[w]hether members of a street
gang would intimidate persons who testify against a member of that or a rival gang is
sufficiently beyond common experience that a court could reasonably believe expert
opinion would assist the jury.” (Gonzalez, supra, 38 Cal.4th at p. 945.) To support this
conclusion, the court cited several cases in which “ ‘expert explication’ ” had been
necessary in order to help the jury understand a “ ‘subculture in which this type of
mindless retaliation promotes “respect.” ’ [Citations.]” (Id. at pp. 945-946.)
       Mears contends that Gonzalez is relevant and supports his claim of error in this
case because it illustrates that “[e]xpert testimony regarding criminal subcultures has
been routinely admitted in gang cases.” We agree that Gonzalez is pertinent but not in
the way Mears contends. The Gonzalez trial court admitted expert testimony about gang
culture at a jury trial for a gang retaliation crime. Here, in contrast to Gonzalez, there was
never any allegation by either side that this was a gang retaliation crime and, indeed, it
does not appear that Lee had any intention to testify about gang subculture. Nevertheless,
Gonzalez is relevant to our analysis because it confirms our conclusion that even if Lee’s
expert opinion was not per se inadmissible, the trial court retained the discretion to
exclude it. (Gonzalez, supra, 38 Cal.4th at p. 945.)
       Here, the trial court exercised its discretion in a different way than the Gonzalez
trial court did and for materially different reasons. It precluded an expert from testifying
that (1) informants in criminal cases always face a real danger of retaliation; (2) this
defendant reasonably feared for his life when he committed the acts that gave rise to the
charges against him; and (3) the Mill Valley police mistreated this defendant in a
different criminal case. As just explained, Mears does not dispute that Lee’s opinion


                                             16
about the conduct of the Mill Valley police was not admissible. Furthermore, Lee could
not properly render any expert opinion about what Mears actually felt or believed (i.e.,
his state of mind) when he killed Robertson. Thus, the only remaining question is
whether the trial court abused its discretion by precluding Lee from offering the general
opinion that all criminal informants face a real threat and danger of retaliation.
       For the reasons outlined above, we believe the trial court acted within its
discretion. Our conclusion is reinforced by several additional considerations, including
that (1) Lee’s actual report is not a part of the appellate record; (2) the court’s ruling was
preliminary in nature and we find no indication that Mears ever attempted to clarify or
refine the expert opinions it intended to elicit in a way that addressed the trial court’s
valid concerns; and (3) the trial court’s ruling was made without prejudice, and Mears’s
trial counsel did not revisit the issue after the prosecution completed its case or Mears
testified regarding his version of the events.
       Furthermore, if excluding expert testimony regarding the magnitude of the risk of
snitching was error, it was harmless. In this regard, Mears contends that the issue of his
“mental state” was “close” and that it is reasonably likely he would have been convicted
of manslaughter if his testimony had been accompanied by Lee’s expert opinion. We
conclude it is not reasonably likely the jury would have resolved this case in a manner
more favorable to Mears had it heard Lee’s expert testimony. (See People v. Watson
(1956) 46 Cal.2d 818, 834.)
       The prosecution never disputed that an informant in a criminal case faces a real
and serious threat of retaliation. Rather, the dispute in this case was whether this
particular defendant actually feared for his life when he encountered Robertson in the
tunnel. In other words, the prosecution’s theory was not that Mears had no objective
reason to fear retaliation from snitching but, rather, that Mears subjectively acted out of
malice aforethought rather than fear when he encountered Robertson in the tunnel, pulled
his own knife out and proceeded to stab the unarmed victim more than 60 times.




                                              17
C.     Defense Motion for Mistrial
       1.     Background
       Prior to trial, the defense filed a motion to preclude the prosecutor from referring
to Robertson as a “victim” until closing argument. (Citing People. v. Williams (1860) 17
Cal. 142, 147.) The defense argued that this term “implies a legal conclusion about
defendant’s guilt, and subverts the presumption of innocence.” At the hearing on in
limine motions, defense counsel reiterated that the word “victim” was inappropriate until
closing argument because “There’s no victim until the jury says there’s a victim.” Over
the prosecutor’s objection, the trial court granted the motion out of an “abundance of
caution.”
       During the prosecutor’s opening statement to the jury, she referred to Robertson as
the “victim” three times. After opening statements were concluded, Mears’s trial counsel
moved for a mistrial “based upon a willful violation” of the court’s in limine ruling.
Defense counsel argued that there was “no possibility” that the violation was inadvertent
or accidental and that the only remedy was to “start over.”
       The prosecutor responded that she made an “inadvertent mistake.” By way of
explanation, the prosecutor stated that she had never before been “ordered not [to] refer
to the victim as the victim.” She apologized to the court and counsel, stated she had no
intention of violating the court’s order and opined that the defense had not been
prejudiced.
       The trial court denied the motion for a mistrial. The court found that there was no
prejudice to the defense because (1) the “vernacular” that the prosecutor used to refer to
the deceased was not likely to have any impact on the jury’s decisions in light of the
nature of the allegations in the case; and (2) instructions the court gave just prior to the
opening statements guarded against potential prejudice by advising the jury that the
attorneys’ statements were not evidence and that they should not to be swayed by
sympathy, bias or prejudice. The court also found that the prosecutor’s use of the term
“victim” was “inadvertent and unintentional.”



                                              18
       2.     Analysis
       Mears contends that the prosecutor’s “repeated disobedience” of the in limine
order deprived him of a fair trial. (Capitalization omitted from quote.)
       First, we reject Mears’s factual characterization of the prosecutor’s conduct. The
trial court found that the prosecutor’s use of the term “victim” was inadvertent, not
disobedient. We will not second-guess that finding which was made by the judge who
personally observed the opening statements.
       Second, we question whether Mears forfeited this claim of error by failing to
request an admonition after the mistrial motion was denied. “[A] claim of prosecutorial
misconduct is not preserved for appeal if defendant fails to object and seek an admonition
if an objection and jury admonition would have cured the injury.” (People v. Crew
(2003) 31 Cal.4th 822, 839.) Here, Mears argues that it would have been futile to request
an admonition because the trial court had already essentially found that a curative
admonition was unnecessary by alluding to the pre-instructions it had given prior to the
opening statements. We disagree.
       The trial court did find that the instructions guarded against potential prejudice.
However, it did not expressly or implicitly refuse to give an additional curative
admonition. Rather, it was defense counsel who expressed the view that the only
“remedy possible” was a mistrial. Once that view was rejected, it appears that defense
counsel made the reasonable tactical decision not to request an additional admonition
which could have highlighted the issue for the jury.
       Third, if this claim of error is preserved for appeal, Mears fails to establish that the
trial court erred by finding that a mistrial was not required. “ ‘A mistrial should be
granted if the court is apprised of prejudice that it judges incurable by admonition or
instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its
nature a speculative matter, and the trial court is vested with considerable discretion in
ruling on mistrial motions. [Citation.]’ ” (People v. Jennings (1991) 53 Cal.3d 334,
380.) Here, Mears fails to support his assumption that the prosecutor’s characterization
of Robertson as a victim was incurably prejudicial.


                                              19
       In the trial court, the defense relied solely on People v. Williams, supra, 17 Cal.4th
142. That case involved an improper jury instruction which described the decedent as a
victim in a case in which the defendant claimed self defense. (Ibid.) Here, this label was
used by the prosecutor, not the trial court, and, although the prosecutor was wrong to
violate the in limine ruling, the jury had just been instructed that statements by counsel
were not evidence and that it should not be influenced by sympathy, bias or prejudice.
       On appeal, Mears also relies on People v. Vance (2010) 188 Cal.App.4th 1182. In
that case, the prosecutor committed prejudicial misconduct by inviting the jury to “put
itself in the victim’s position and imagine what the victim experienced” when he was
killed. (Id. at pp. 1188, 1192-1198.) Nothing comparable to that happened in this case.
       Finally, even if the trial court erred by failing to give an additional admonition or
even to grant the motion for a mistrial, the error was harmless. “ ‘A defendant’s
conviction will not be reversed for prosecutorial misconduct . . . unless it is reasonably
probable that a result more favorable to the defendant would have been reached without
the misconduct. [Citation.]’ ” (People v. Tully (2012) 54 Cal.4th 952, 1010.) Under the
circumstances established here no such reasonable probability exists.
D.     Causation Jury Instructions
       Mears contends the jury instructions were fatally flawed because they did not
properly instruct the jury regarding the causation element of the homicide offenses.
       1.      Background
       During the trial, the parties each filed requests for jury instructions. The trial court
used those requests to compile its own set of instructions which it proposed to give,
subject to revisions based on counsels’ objections and arguments. After conducting a
hearing to consider those objections and arguments, the court settled on the jury
instructions that it used in this case.
               a.     CALCRIM No. 520
       The trial court used CALCRIM No. 520 to instruct the jury regarding the elements
of murder with malice aforethought. CALCRIM No. 520 states, among other things, that
the People have the burden of proving that: “1. The defendant committed an act that


                                              20
caused the death of another person; [¶] 2. When the defendant acted, he had a state of
mind called malice aforethought; [¶] AND [¶] 3. He killed without lawful excuse or
justification.”
       CALCRIM No. 520 also includes detailed definitions of express and implied
malice. However, in giving this instruction, the trial court did not include optional
bracketed paragraphs from the pattern instruction which elaborate on the causation
element of a murder charge. Those paragraphs state:
       “[An act causes death if the death is the direct, natural, and probable consequence
of the act and the death would not have happened without the act. A natural and
probable consequence is one that a reasonable person would know is likely to happen if
nothing unusual intervenes. In deciding whether a consequence is natural and probable,
consider all the circumstances established by the evidence.]
       “[There may be more than one cause of death. An act causes death only if it is a
substantial factor in causing the death. A substantial factor is more than a trivial or
remote factor. However, it does not need to be the only factor that causes the death.]”
       At the hearing on jury instructions, defense counsel objected to giving CALCRIM
No. 520 on the ground that there was insufficient evidence of premeditation or malice
aforethought. The trial court overruled that objection. The defense did not object that the
trial court should include the optional bracketed paragraphs from the pattern instruction
that address causation or indeed make any comment about causation when this instruction
was discussed.
                  b.   CALCRIM No. 240
       The trial court did not instruct the jury with CALCRIM No. 240, notwithstanding
that this instruction was included on the list of instructions requested by the defense.
       CALCRIM No. 240, which is titled “Causation,” states that an act causes an injury
if the injury “is the direct, natural, and probable consequence of the act” and the injury
“would not have happened without the act.” This pattern instruction defines a natural and
probable consequence as “one that a reasonable person would know is likely to happen if



                                             21
nothing unusual intervenes” and advises the jury to consider “all the circumstances
established by the evidence” when deciding this question.
       CALCRIM No. 240 also includes a bracketed optional paragraph to be used in
cases involving multiple potential causes of injury which states that an act is a cause of
injury only if it is a “substantial factor” in causing the injury, and which defines
substantial factor as “more than a trivial or remote factor,” but not necessarily the only
factor that causes the injury.
       At the hearing on jury instructions, the trial court made a preliminary ruling not to
give CALCRIM No. 240, but then inquired whether the defense wished to be heard on
the matter. Defense counsel responded: “No, I believe it should be given, but I’m not
going to belabor the point.” The prosecutor stated that she did not think the instruction
should be given. Then the court made the following ruling: “All right. For the reasons
we discussed in limine, the causation instruction, I think, is not appropriate in this case
and will not be given.”
              c.      CALCRIM No. 620
       The trial court did not instruct the jury with CALCRIM No. 620, notwithstanding
that this instruction was also requested by the defense.
       CALCRIM No. 620, which is titled “Causation: Special Issues,” states, in part:
“There may be more than one cause of death. An act causes death only if it is a
substantial factor in causing the death. A substantial factor is more than a trivial or
remote factor. However, it does not need to be the only factor that causes the death.”
       CALCRIM No. 620 also contains a bracketed optional paragraph to use in cases
involving medical malpractice which states: “[The failure of the (doctor(s)/ [or] medical
staff) to use reasonable care in treating ___________________ <insert name of
decedent> may have contributed to the death. But if the injury inflicted by the defendant
was a substantial factor causing the death, then the defendant is legally responsible for
the death even though the (doctor[s]/ [or] medical staff) may have failed to use
reasonable care. On the other hand, if the injury inflicted by the defendant was not a
substantial factor causing the death, but the death was caused by grossly improper


                                              22
treatment by the (doctor[s]/[or] medical staff), then the defendant is not legally
responsible for the death.]”
       When CALCRIM No. 620 was addressed at the hearing on jury instructions, the
trial court stated: “. . . again, a causation instruction. I don’t think it’s appropriate given
our previous discussion. Do you wish to be heard further?” Both the defense counsel
and the prosecutor declined to argue the issue and, therefore, the court ruled that this
instruction would not be given.
       2.     Analysis
       Mears contends the trial court erred by refusing to instruct the jury with the two
CALCRIM causation instructions that he requested. Mears also complains that the trial
court should have included the bracketed optional paragraphs contained in CALCRIM
No. 520, because they would have focused the jury’s attention on the specific question of
what act or acts were substantial factors in causing Robertson’s death.
       Mears argues that he was entitled to these instructions under one if not two
principles of law. First, the trial court has a sua sponte duty to instruct on issues
“ ‘ “closely and openly connected with the facts before the court, and which are necessary
for the jury’s understanding of the case.” ’ ” (People v. Breverman (1998) 19 Cal.4th
142, 154 (Breverman).) Second, a criminal defendant is entitled to an instruction
pinpointing his defense theory. (See, e.g., People v. Burney (2009) 47 Cal.4th 203, 246
(Burney).)
       However, the trial court’s sua sponte obligation to instruct on general principles of
law applies only to principles that are “ ‘ “relevant to the issues raised by the
evidence.” ’ ” (Breverman, supra, 19 Cal.4th at p. 154.) By the same token, although the
defendant does generally have a right to an instruction that pinpoints the theory of the
defense, the trial court may properly refuse such an instruction if it is not supported by
substantial evidence. (Burney, supra, 47 Cal.4th at p. 246.)
       Here, as we have already explained, there was no substantial evidence that medical
malpractice was an intervening cause of Robertson’s death. Thus, to the extent medical



                                              23
malpractice was a defense theory in this case, that unsupported theory did not entitle
Mears to any special causation jury instruction, whether he requested it or not.
       On appeal, Mears contends that malpractice was not the only causation issue in
this case. In fact, Mears takes the position that causation was a disputed issue at this trial
because it directly related to the defense claim that Mears did not “harbor malice” when
he inflicted the fatal stab wound to Robertson’s abdomen. Under this theory, Mears
inflicted two distinct sets of injuries on Robertson. The first set of injuries that Mears
inflicted before he turned to walk away the first time, which included the fatal knife
wound to Robertson’s abdomen, were inflicted without malice because Mears was
overcome by passion and fear. By contrast, Mears argues, when Mears returned to
Robertson’s “supine” body and kicked and stabbed him in the head, he may have been
acting with malice, but those acts did not cause Robertson’s death.
       Mears argues that this mens rea defense to the murder charge gave rise to a sua
sponte duty to instruct the jury regarding the law of proximate cause because it made
causation a crucial disputed issue at trial. (Citing People v. Bernhardt (1963) 222
Cal.App.2d 567, 590-591 [“[a] failure to instruct upon the element of proximate
causation where that matter is in issue constitutes error. [Citation.]”].)
       As reflected above, the jury in this case was instructed with CALCRIM No. 520
regarding the prosecutor’s burden of proving that Mears caused Robertson’s death. On
appeal, Mears does not dispute that instruction correctly states the law. Instead, what he
is really arguing is that CALCRIM No. 520 was too general or incomplete to adequately
instruct on causation in light of his mens rea defense. However, “[a] party may not argue
on appeal that an instruction correct in law was too general or incomplete, and thus
needed clarification, without first requesting such clarification at trial.” (People v.
Hillhouse (2002) 27 Cal.4th 469, 503.)
       Here, the mens rea argument that Mears advances in his appellate briefs was not
the basis upon which he sought special causation jury instructions. Indeed, characterizing
this argument as a defense theory seems misleading. As best we can determine, this issue
about whether Mears had two different types of intent during the stabbing incident in the


                                              24
tunnel arose during closing arguments to the jury in the context of an argument about the
impact of Mears’s admission that he was not acting in self-defense when he inflicted the
final two stab wounds in Robertson’s head.6 In any event, the issue clearly was not raised
in connection with the jury instructions that were requested or debated during trial.
       Furthermore, the element that is targeted by this new mens rea theory is intent not
causation; the argument concedes that Mears inflicted all of the knife wounds, including
the allegedly fatal wound, but disputes that Mears intended to kill when he inflicted the
allegedly fatal wound to the abdomen. Contrary to Mears’s arguments on appeal, this
precise issue was adequately addressed by the jury instructions in this case. Specifically,
the jury was instructed with CALCRIM No. 251, which states: “The crime charged in
this case requires proof of the union or joint operation, of act and wrongful intent. [¶] For
you to find a person guilty of the crime charged in this case or any lesser offense or to
find the allegation of personal use of dangerous or deadly weapon true, that person must
not only intentionally commit the prohibited act, but must do so with a specific intent or
mental state. The act and the specific intent or mental states required are explained in the
instructions for that crime or allegation.” In addition, CALCRIM No. 520 reiterated for
the jury the required nexus between act and intent by instructing that the prosecution had
the burden of proving that Mears “committed an act that caused the death of another
person,” and that “[w]hen the defendant acted, he had a state of mind called malice
aforethought.”



       6
          At times during his lengthy argument, Mears actually attributes this mens rea
theory to the prosecutor. For example, he contends he was entitled to special causation
instructions “in order to rebut the prosecution’s mens rea argument” that, when Mears
returned to Robertson and stabbed him twice in the head after walking away, he acted
with malice which “could not be explained away as heat of passion or a fugue state.”
This version of Mears’s argument mischaracterizes the prosecution’s theory. The
prosecutor did not contend that the two final stab wounds to the head caused Robertson’s
death. Instead, she argued that Mears’s admission that he was not acting in self defense
when he returned to Robertson’s body was evidence that he was never acting in self
defense.


                                             25
       Mears contends that additional causation instructions were necessary to ensure that
the jury did not mistakenly conclude that Mears’s mental state when he inflicted
“superficial wounds on the supine Robertson” was sufficient to establish that he acted
with malice when he inflicted the fatal wound earlier during the fight in the tunnel. But
he fails to explain how the causation instructions he now finds so vital would have
provided the jury with useful guidance on this issue, especially in light of the fact that the
defense never disputed that Mears caused Robertson’s death. Indeed, that concession
was made during the defendant’s opening statement to this jury. Furthermore, because
Mears continues to misconstrue an intent issue as a causation issue, he overlooks the
pertinent instructions that addressed this aspect of Mears’s argument.
       CALCRIM No. 251 instructed this jury that murder is a specific intent crime;
CALCRIM No. 520 further instructed that the specific intent required to prove murder is
malice aforethought, and that malice aforethought “is a mental state that must be formed
before the act that causes death is committed.” Thus, if the jury had been persuaded by
the defense theory that Mears harbored a fundamentally different mental state when he
inflicted the first 66 knife injuries than he did when he inflicted the final two, then the
instructions that the jury received in this case would have required the jury to find that
Mears was not guilty of murder.
       For all these reasons, we reject Mears’s claim that the trial court failed to properly
instruct the jury regarding the causation element of the charged offense.
E.     CALCRIM No. 370
       The trial court instructed the jury regarding the potential relevance of evidence of
a motive by giving a version of CALCRIM No. 370 which stated: “The People are not
required to prove that the defendant had a motive to commit the crime charged. In
reaching your verdict you may, however, consider whether the defendant had a motive.
[¶] Having a motive may be a factor tending to show that the defendant is guilty. Not
having a motive may be a factor tending to show the defendant is not guilty.”
       On appeal, Mears contends this motive instruction was irrelevant. He reasons that
(1) motive evidence is relevant to prove the identification of the perpetrator, but (2)


                                              26
identity was not a disputed issue in this case. However, Mears’s own authority
establishes that motive evidence is potentially relevant to a panoply of issues, not just
identification. (People v. Gonzales (1948) 87 Cal.App.2d 867, 877-878.) “It is settled
that evidence having a direct tendency, in view of the surrounding circumstances, to
prove motive on the part of a person to commit the homicide, and thus to solve a doubt
either as to the identity of the slayer, the degree of the offense, the insanity of the
accused, or the justification or excusability of his act, is admissible, however
discreditably it may reflect upon the defendant, and even where it may show him guilty
of other crimes. [Citations.]” (Id. at pp. 877-878.)
       Here, the prosecution produced substantial evidence that Mears intentionally killed
Robertson because he was angry at him for calling him a snitch. This motive evidence
was relevant and admissible to rebut Mears’s claim of self-defense. (See, e.g., People v.
Hall (1938) 27 Cal.App.2d 440, 446.) Thus, CALCRIM No. 370 was not irrelevant.
       Alternatively, Mears contends that CALCRIM No. 370 was inappropriate and
misleading because he produced evidence that he was motivated by fear and passion, but
this pattern instruction “does not acknowledge that ‘motive’ evidence may affirmatively
point to innocence when it tends in reason to negate malice.” Mears forfeited this claim
of error by failing to raise it in the trial court. In any event, it lacks merit.
       CALCRIM No. 370 is a correct statement of the law. (See People v. Anderson
(2007) 152 Cal.App.4th 919, 942.) Mears does not dispute this fact. Thus, he is not
complaining about what CALCRIM No. 370 says, but rather what it does not say.
However, if Mears believed that the motive evidence in this case tended to negate the
malice element of the charged offense, it was incumbent on him to request an instruction
pinpointing this special theory. (See, e.g., People v. Garvin (2003) 110 Cal.App.4th 484,
488-489.) No such instruction was requested. Indeed, as just noted, the issue was never
even raised in the trial court.
                                     IV. DISPOSITION
       The judgment is affirmed.



                                                27
                                              _________________________
                                              Haerle, Acting P. J.


We concur:


_________________________
Richman, J.


_________________________
Brick, J.*




      * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




                                         28
