Filed 7/18/16 P. v. Medina CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b) . This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.

ALEX JO SEPH MEDINA,
Defendant and Appellant. 2d Crim. No. B253317 (Super. Ct. No. 2009024052) (Ventura County)

Appellant Alex Joseph Medina, a 14

- year

- old Hispanic gang member, and victim Seth Scarminach, a 1 6

- year

- old associate of a rival gang with a " White pride" ideology, exchanged words and challenges at a party. Sc arminach moved on to another party and appellant followed him. Words were again exchanged and the two agreed to f

ight. A fter each of them had exchanged a few punches, appellant pulled o ut a large kitchen knife and stabbed Scarminach in the stom ach. He then jumped on top of his fallen victim and r epeatedly stabbed him . One of the wounds fatally penetrated all the way through Scarminach's heart, and another cut his right

car otid arter y

.2 A jury convicted appellant of fi rst degree murder (Pen. Code, § 187, subd. (a)). 1 The jury also found true allegations that he (1) personally used a deadly weapon, i.e., a knife (§ 12022, subd. (b)(1)); (2) intentionally killed the
victim while an active participant in a criminal street gang and carried out the crime to facilitate the gang's activities (§ 190.2, subd. (a)(22)); and (3) committed the crime for the benefit of, at the direction of, or in association with a gang (§ 186.22, subd. (b)(1)) . The trial court sentenced him to 26 years to life with the possibility of parole. Appellant contends the evidence is insufficient to sustain his conviction of first degree murder and that the court erred in failing to instruct on
lesser included offenses. H e further contends that the court erred in refusing to permit him to testify after both sides had rested and it had been decided that instructions on manslaughter would not be given. He also asks us to examine the sealed record of the court's in camera pr oceeding to determine if the court erred in failing to order the release of Scarminach's mental health records. We affirm.
STATEMENT OF FACTS
Prosecution On April 25, 2009, appellant was a member of the Ojai Surenos Lokos (OSL) , a Latino criminal street gang with allegiance to the Mexican Mafia

. The victim, 16

- year

- old Seth Scarminach, was a member or associate of OSL's primary rival, the Meiners Oaks Boys (MOB) gang. OSL members adopted the
color blue as a symbol and commonly wore blue bandanas and jer seys , while MOB

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

. Appellant was 14 years old when he committed the crime and was charged as an adult based on allegations he personally killed the victim and acted for the benefit of a criminal street gang (Welf. & Inst. Code, § 707, subd s . (d)(2)( A ) & (d)(2)(C)(ii)). Five months after the complaint was filed, a doubt was decl ared as to his mental competency and the criminal proceedings were suspended. In July 2012, the jury found appellant competent to stand trial and the proceedings were reinstated.3

members wo re red bandanas and shoelaces. MOB members were primarily Caucasian and wore red in part to connote "White power."

Early that evening, Veronica Vaughan drove appellant and fellow
OSL members Rutilio "Pelon" Huerta and Gabriel "D anger" Arellano to a house party on the east end of Ojai. Meanwhile, Scarminach went to a party in the Arbolada neighborhood of Ojai with Eric Nestingen, Forrest Whitman, and Alex
Luna. Scarminach, Nesti ngen and Whitman took Ecstasy before they arrived.
S carminach was wearing a red shirt and shoes with red shoelaces. He was also sporting three red bandanas and intermittently wore one of the m over his face.

Appellant, Huerta , Arellano , and Vaughan left the party on the east
end and drove to the party in the Arbolada. Scarminach was sitting in the living
room with Whitman and Garret Gross when appellant entered the room with Huerta
and Arellano. Appellant asked Gross and Whitman where they were from. Gross and Whitman each replied that they were from O jai . Appellant then focused on
Scarminach and angrily sai d, "Stomps, OSL. Where the fuck are you from?" 2 Scarminach responded, "I don't need to answer to you." A ppellant confronted Scarminach about the color of his clothing and referred to his shoes. Scarminach raised his feet in the air and asked, "Do you have a problem with my shoes?" The two began cursing at each other and Scarminach displayed a gang sign.

Appellant and Scarminach went outside and a ppellant demanded,

" W hat do you claim

. " Scarmina ch responded, "Meiners Oaks
, " to which a ppellant replied, "OSL 13[.]" 3 Appellant and Scarminach were both agitated and prepared to fight. Nestingen
, Whitman , Luna, and Huerta all urged them not to do so. Nestingen took Scarminach to a bedroom and told S carminach 's girlfriend, Krista

2 Appellant's gang moniker was "Stomps" or "Stompers."
3 Reference to the nu mber 13, the numerical value of the letter M, connotes respect for the Mexican Mafia.4

Petler, what had happened. Scarminach still wanted to fight appellant b ut Petler
was able to calm him down. When another guest asked a ppellant w hat had happened, appellant alluded to an incident that had taken place at the skate park earlier that day.

Scarminach and his friends decided to go to Nestingen's house

. Nestingen invit ed Vaughan and several others to join them but said, "Don’t bring
the Me xicans with you. " Appellant and Huerta asked Vaughan if they could go
with her. She told them they were not invited but agreed to give them a ride so long as they did not walk into the party with her. Arellano rode with someone else.

About 30 people attended the Meiners Oaks party , which was held in

a guest house on the same property as Nestingen 's house. When appellant arrived, Nestingen urged him and Scarminach to se ttle their differences. They both refused and walked away.

Just before 2:00 a.m., Scarminach and Petler went out on the porch. Appellant told Huerta he wante d to talk to Scarminach. Appellant, Huerta, and Arellano approached Scarminach and asked him to come off the porch and speak with them. Appellant told Scarminach that he wanted to fight

. Appellant asked
Scarminach where he was from and they both r e itera ted t heir gang affiliations.
Petler tried to calm everyone down but Huerta pushed her back inside the guest house. Appellant and Scarminach walked toward the front of the guest house and "square[d] off" against each other. Scarminach removed his outer s hirt and baseball cap. The two then exchanged a few punches

. Scarminach

— who stood six
feet and one

- inch tal l and weighed approximately 165 pounds

— appeared to be getting the better of appellant
, who was five feet and three inches tall and weighed
about 13 0 pounds. Approximately 10 to 15 seconds after the first punch was thrown, appellant pulled out a concealed knife and sta bbed Scarminach in the5

stomach. When Scarminach fell to the ground , a ppellant jumped on top of him and repeatedly stabbed and cut him

.

Appellant ran down the driveway toward the street , leaving a trail of blood droplets

. Appellant cal led his mother, Jeanine Arellanes, and asked if she could pick him up. Arellanes drove to the location appellant had given her and found him behind a pa rked car on the side of the road. She chastised him for being out late but did not ask any que stions.

Several people at the Meiners Oaks party called 911. Nestingen told everyone that Scarminach had been hurt and asked them to leave. Those who knew
Sca rminach stayed and surrounded him as he lay on the ground. Nestingen

summon ed the help of his mother, an occupational therapist, who administered CPR
to Scarminach until the paramedics arrived. When the police arrive d
, several people identified appellant as the stabber.

Scarminach died at the scene. The autopsy revealed that he had
suffered 17 cuts and 7 or 8 stab wounds
, 2 of which were independently fatal. One was a deep, jagged stab wound over the right jaw that penetrated the neck and cut
the carot id artery. The other was a five

- or six

- inch deep stab wound through the chest that perforated the left lung and penetrated through the heart. Scarminach also suffered three cuts to the back, a deep stab wound just below the ne ck that penetrated muscle a nd bone, four stabbing and cutting wounds to the side of the right temple, a long cut down the lower chest and waist, and a V

- shaped stab wound
to the wrist. Scarminach's blood alcohol level was .07 at the time of his death and
he tested positive for Ecst asy, marijuana, and the anti

- seizure medication Dilantin.

Several hours after the killing, the police entered appellant's residence in Meiners Oaks to conduct a probation search. 4 Appellant was alone and asleep in
bed. The officers woke him up and inter viewed him. During the interview,

4 Appellant was on probation and was subject to search terms.6

appellant removed a gauze bandage from his right hand and revealed "slice" injuries on the inside of his index and middle fingers. Appellant claimed he had suffered the injury while climbing a chain

- link fence at school

. He denied being present at
the Meiners Oaks party and claimed he was at home all night. When the police
inter viewed Arellanes later that day , she said appellant had called her for a ride home the previous night and showed them where she picked him up. Arellano initially denied he was at the Meiners Oaks party , but later admitted he was present and witnessed the incident.

A fter appellant was arrested, the police searched his residence and
cell phone and found numerous items indicative of gang activity. In July 200 9,

gang

- related writings were confiscated from appellant's cell in juvenile hall
, including one in which he identified himself as "an evil

- minded gangster

. " In another writing he stated, "I see a red figure and I go pull the trigger
, " which wa s a reference to MOB members. Similar writings were confiscated three months later. In December 2009, appellant got into a fight with another MOB member. After the two were separated, appellant yelled, "Fuck you and your homie. May your homie rest in p iss." Ventura County Sheriff's Detective Steven Jenkins testified as the prosecution's gang expert. Detective Jenkins opined that OSL was a criminal street gang, that appellant was a member of the gang, and that he committed the crime for the gang's bene fit. When presented with a hypothetical based on the facts of the case, Detective Jenkins said it described "a classic gang crime." Defense Appellant began seeing mental health professionals when was he was about six years old. His s tepfather physically and emotionally abus ed him and his
mother on a regular basis

. When he w as 10 to 11 years old
, he starting running away from home. On one occasion
, he threatened to kill himself and was placed in7

a psychiatric facility. He was frequently truant from sch ool by age 12 and was suspended from middle school for having a knife.

Dr. Ellen Yoshimura, a clinical psychologist employed by the Ventura County Behavioral Health Department, first met with appellant when he was 12 years old

. She concluded that appella nt was presently suffering from chronic post

traumatic stress disorder (PTSD) and anxiety due to the abuse his s tepfather had
inflicted on both him and his mother. The doctor also noted, however, that appellant got along well with his stepfath er and was v ery close with him. Dr.
Yoshimura began treating appellant on an ongoing basis a year after his arrest. She maintained appellant's PTSD diagnosis throughout his treatment and later added diagnoses of conduct disorder, obsessive

- compulsive disorder (OCD) , and anxiety
disorder. Dr. Sandor Dresnin, a psychiatrist who specializes in adolescents , first saw appellant when he was 12 and in juvenile hall for assaulting his mother. Dr. Dresnin treated appellant approxi mately 24 times over the next 6 years. Appe llant's initial diagnosis was anxiety disorder with secondary PTSD, with the latter subsequently becoming more prominent. Dr. Dresnin subsequently added a diagnosis of conduct disorder, which is frequently a precursor of antisocial personality disorder

. Appel lant displayed symptoms of OCD and engaged in fights.

Dr. Donald Hoagland, a psychologist, was retained by the defense to evaluate appellant's mental status at the time of the offense. Dr. Hoagland met with appellant approximately 12 times beginning in April 2010. Dr. Hoagland diagnosed appellant as suffering from PTSD with dissociative features as of the date of the
offense. The doctor also diagnosed appellant with conduct disorder and OCD, and in later 2011 added a diagnosis of Tourette's Syndrom e. The diagnosis of PTSD

was based in part on appellant's claim that he h ad been sexu ally abused by a female8

family friend from around the age of four

. 5 Appellant had also reported experienc ing dissociative r eactions since the age of five.

Dr. Hoagland opined that appellant killed Scarminach " while he was
in a dissociative state " in that "[h] e was separated from the reality of what he was doing, and he did not know or have awareness of what he was doing at the time. It
was a dissociation based on fear o r survival." This opinion was based on appellant's "perception" that Scarminach was lunging at him with a knife. Dr. Hoagland acknowledged that his opinion was dependent upon unconfirmed information that appellant had conveyed to him.

Appellant also pre sented evidence of Scarminach's participation and interest in gang culture and his affiliations with the MOB and the Demons Motorcycle Club , the latter of which had ties to the Hell's Angels. There was also
evidence that on the afternoon before the murder , someone using Scarminach's computer accessed appellant's social media profile.
Rebuttal Dr. Kris Mohandie, a clinical and forensic psychologist experience d
in treating individuals suffering from PTSD and dissociative disorders, was retained by the prose cution to evaluate appellant. Appellant refused to be evaluated. D r. Mohandie found no evidence that appellant was in a dissociative state or experiencing a posttraumatic reaction when he stabbed Scarminach. The doctor believed that appellant's claims t o that effect indicated malingering. Dr. Mohandie diagnosed appellant with a severe, childhood

- onset conduct disorder that had progressed to antisocial personality disorder by the time of trial. Appellant also displayed characteristics of juvenile psycho pathy. Dr. Mohandie also concluded

5 Appellant made this claim for the first time in May 2012. He never told Dr. Dresnin about any sexual abus e. Dr. Dresnin was "highly skeptical" of the claim of abuse given the timing of the allegation and surmised that appellant "could simply be manipulating the therapist regarding titillation, i.e., controlling or trying to build a new case for his defense."9

that Dr. Hoagland's findings were invalid to the extent he deviated from the
standard i nstructions for the personality and trauma symptom inventories he administered to appellant.
DISCUSSION
I.
Scarminach's Mental Health Records During pretrial discovery, it was disclosed that S carminach was receiving mental health treatment at the time of his death . A p pellant subpoenaed Scarminach's mental health records and moved ex parte for their release. At appellant's request, un redacted versions of the motion, points and authorities, and counsel's supporting declarations were filed under seal "to safeguard attorney

- client privileged communications and attorney work

- product. " Scarminach's mother asserted that the records were pri vileged and objected to their release. (Evid. Code, §§ 1012, 1013, subd. (c).) The Ventura County Behavioral Health Department also objected on grounds of confidentiality. (Welf. & Inst. Code, § 5328 et seq.) The People opposed the request and asked th e court to review the records in camera to determine whether appellant had establishe d good cause for their release.

The court rejected appellant's claim that the privilege had been
waived

. I n a written decision, the court concluded that the records were both privileged an d irrelevant to the proceedings and accordingly denied the request. The parties were given a redacted version of the court's decision, and the unredacted version (which includes references to privileged information contained in the subp o e n a ed records and counsel's decl arations) was filed under seal.

Appellant asks us to review the sealed materials to determine whether the court abused its discretion in refusing to release the subpoenaed records regarding Scarminach's mental health treat ment. We conclude the court had no duty to review the subpoenaed records in camera , much less release them to appellant . " [T] rial court[ s are] not required, at the pretrial stage of the proceedings,10

to review or grant discovery of privileged information in the hands of third party psychotherapy providers." ( People v. Hammon (1997) 15 Cal.4th 1117, 1119.) Appellant 's reliance on People v. Reber (1986) 177 Cal.App.3d 523, is unavailing
because the case has been overruled on the very point for which it is offered. ( Hammon , at p. 1123; see also Rinaker v. Superior Court (1998) 62 Cal.App.4th 155, 166 [recognizing same].)

W e have reviewed the sealed materials and conclude the court did not
abuse its discretion in finding that a ppellant failed to show good c ause for release of
the records and that the records are irrelevant and undis c overable.
II. Sufficiency of the Evidence

- First Degree Murder Appellant contends the evidence is insufficient to support his conviction of first degree murder on either of the theories proffered by the prosecution, i.e., that he (1) acted with premeditation and deliberation, and/ or (2)
committed the crime while lying in wait. (§ 189.) We disagree.

In reviewing claims of insufficient evidence, we examine the entire
record in the light most favorable to the judgment to determine whether there is
substantial evidence

— evidence that is reasonable, credible, and of solid value

— from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. ( People v. Maciel (2013) 57 Cal.4th 482, 514

- 515.) We do not reweigh the evidence or reassess the credibility of witnesses. ( People v. Houston (2012) 54 Cal.4th 1186, 1215.) We accept the logical inferences that the jury might
have drawn from the evidence even if we would have concluded otherwise. ( People
v. Streeter (2012) 54 Cal.4th 205, 241.) If the trier of fact's findings are reasonably justified by the circumstances, the opinion of the reviewing court that a contrary finding might also reasonably be reco nciled with the circumstances does not warrant reversing the judgment. ( People v. Jones (2013) 57 Cal.4th 899, 961.)11 " A verdict of deliberate and premeditated fi rst degree murder requires

more than a showing of intent to kill. [Citation.] ' Deliberation ' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] " ( People v. Koontz (2002) 27 Cal.4th 1041,
1080

. ) "'The true test is not the duration of time as much as it is the extent of th e reflection.' [Citations.] .

. . '[T]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.' [Citation.] . . . [A] killing resulting from preexisting reflection, of any duration, is readi ly distinguishable from a killing based on unconsidered or rash impulse. [Citation.]" ( People v. Solomon (2010) 49 Cal.4th 792, 813.)

People v. Anderson (1968) 70 Cal.2d 15 ( Anderson ) discusses three types of evidence that are commonly shown in cases of premeditated murder: planning activity, preexisting motive, and manner of killing. ( Id. at pp. 26

- 27.) However, " A nderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation. [Citation.] " ( People v. Perez ( 1992 ) 2 Cal.4th 1117, 1125.) The evidence is sufficient to support a finding that appellant acted with premeditation and deliberation in killing Scarminach. Detective Jenkins

a ccurately described it as "a classic gang crime." Motive can be inferred from the fact that the murder was gang

- related. (See People v. Gonzales (2011) 52 Cal.4th 254, 295 ; People v. Sandoval (1992) 4 Cal.4th 155, 175.) A ppellant 's plan to
commit the cr ime can be inferred from the evidence that he and Scarminach had encountered each other earlier that day, the manner in which he sought out
Scarminach and repeatedly approached him to solicit an altercation, and the fact
that he armed himself with a knife

. (See People v. Romero (2008) 44 Cal.4th 386,
401 [defendant's decision to arm himself with a weapon support ed inference that he planned to use it to kill rival gang members , such that he could be found to have12

acted with premeditation and deliberation ].) Finally, the manner in which appellant
committed the killing

— which included cutting Scarminach's throat and inflicting other wounds that were plainly calculated to result in his death

— amply supports
the fi nding that he acted with premeditation and delib eration. (See People v. Hernandez ( 1988 ) 47 Cal.3d 315, 350 [ "calculated" rather than "random " manner of killing may support finding of premeditated murder ] ; Anderson
, supra , 70 Cal.2d at p. 27 ["exacting" manner of killing is indicative of premeditation] .)

In light of our conclusion that the evidence is sufficient to support the finding that appellant killed Scarminach with premeditation and deliberation, we
need not decide whether the evidence supports a finding that he committed the crime while lying i n wait. ( People v. Sandoval (2015) 62 Cal.4th 394, 424.)
III. Alleged Instructional Error s A. Voluntary Manslaughter Appellant claims the court erred in refusing to instruct the jury on voluntary manslaughter based on sudden quarrel / heat of passion. We conclude
otherwise. In a criminal matter, a trial court must instruct the jury on general principles of law relevant to issues raised by the evidence. ( People v. Walker (2015) 237 Cal.App.4th 111, 114.) This requirement includes instructing a jury on

a lesser included offense " if there is substantial evidence from which a ju ry could reasonably conclude that the defendant committed the lesser, uncharged offense but not the greater, charged offense. [Citation.]" ( People v. Thomas (2012) 53 Cal.4th 771, 8 13.) There must be some basis, "' other than an unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged .' [ Citations. ] " ( Walker , at p. 117.) The obligation to instruct on lesser
included off

enses applies even absent a request from the defendant for an13

instruction and over a defendant's express objection to an instruction. ( Id. at p. 115.) But the court has no duty " to instruct on theories that have no such evidentiary support. [Citation.]" ( People v. Smith (2013) 57 Cal.4th 232, 240.)

A defendant who commits an intentional and unlawful killing lacks malice when the defendant acts as a result of a sudden quarrel or heat of passion. ( People v. Moye (2009) 47 Cal.4th 537, 549 ( Moye ).) Such heat of passion or provocation is a "' theor [ y ] of partial exculpation ' that reduce [ s ] murder to manslaughter by negating the element of malice [Citation.]" ( Ibid. )

" The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. " ( People v. Steele (2002) 27 Cal.4th 1230, 1252 .) "'" To satisfy the objective or ' reasonable person ' element of this form of voluntary manslaughter, the accused's heat of passion must
be due to ' sufficient provocation. '" [Citation.] ' [Citation.]" ( Moye , supra , 47 Cal.4th at p. 549.) " ' The provocative con duct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and
reflection. [Citation s .]' [Citation.] " ( Id. at p. 550.) Since the test is an objective one, a defendant's particular susceptibilities are irrelevant. ( People v. Oropeza (2007) 151 Cal.App.4th 73, 83 .) "' [N]o defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. ' [Citation.] " ( Steele
, supra , at pp. 1252

- 1253.)

During the jury instructions conference , the parties agreed that the jury should be instructed on voluntary manslaughter because, as the court put it, "the jurors could find that it's a killing where there's an intent t o kill but where14

there's no malice aforethought." The prosecutor objected, however, to defense counsel's request that the jury also be instructed on provocation ( CALCRIM No.
522 ) and sudden quarrel/ heat of passion (CALCRIM No. 570). The prosecutor
asserted that these instructions were unwarranted because there was no evidence
th at appellant was either provoked or had killed Scarminach because of a sudden quarrel or while in the heat of passion. The court reserved its ruling as to both proffered instructions.

When the parties reconvened a few days later, t he prosecutor
withdrew its request for a voluntary manslaughter instruction "unless the court finds that one of the requested instructions, imperfect self

- defense provocation or heat of passion [,] is appropriate." The court replied that it was disinclined to give any of
the thr ee instructions because "there is no evidence in this record at all of what the state of mind of the defendant was." Defense counsel complained that "there was an agreement that voluntary [ manslaughter ] was going to be given
, albeit it was on
a different theory." After giving defense counsel additional time to research the issue, the court formally declined to instruct the jury on voluntary manslaughter or sudden quarrel/heat of passion. The court noted " a failure to proof of a normal component of heat o f passion on these facts" and reasoned that "[m]utual consent to have a fight because the people involved are from different gangs" did not support a theory of voluntary manslaughter . The jury was, however, instructed on provocat ion as it related to the d etermination whether appellant was guilty of first or second degree murder. 6

The court did not err in refusing to instruct on voluntary manslaughter or sudden quarrel/heat of passion. As appellant acknowledges, our Supreme Court

6 The jury was instructed in accordance with CALCRIM No. 522 as follows: "Provocation may reduce a murder from first degree to second degree. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the d efendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder."15

has repeatedly "rejected arguments that insults or gang

- related challenges would induce sufficient provocation in an ordinary person to merit an instruction on voluntary manslaughter. [Citations.]" ( People v. Enraca (2012) 53 Cal.4th 735, 759.) He neverthe less purports to disti nguish the instant case on the ground that "the altercation progressed well beyond verbal posturing and manifested into a physical fight. "

If anything
, the circumstances provide further support for our
conclusion that instructions on voluntary manslaughte r were properly refused.

" ' The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. ' [Citati on.] ' [T]he victim must taunt the defendant or otherwise initiate the provocation. ' [Citations.]" ( People v. Avila (2009) 46 Cal.4th 680, 705.) The evidence at trial demonstrated
that appellant initiated the altercation by approaching Scarminach a nd as king him to identify his gang affil i ation. Moreover, the re was no "sudden quarrel" here. Appellant and Scarminach each challenged the other to fight on more than one
occasion over the course of the night. After it appeared that the situation had been
de fused, appellant called Scarminach aside and yet again instigated a fight. When they finally agreed to fight
, they each walked to a separate area and "squared off."
Less than 20 seconds after the y began hitting each other, appellant pulled out a
knife an d stabbed Scarminach

. N othing Scarminach said or did that night co uld
have been found by the jury to have "arouse [d] feelings of homicidal ra ge or passion in an ordinarily reasonable person," such that appellant was guilty of no
more than voluntar y mansla ughter. ( People v. Pride (1992) 3 Cal.4th 195, 250;
Avila
, supra , at p. 706.)

Appellant also asserts that the error in failing to instruct on voluntary manslaughter had the additional consequence of violating his due process rights by effectively removin g from the jury's consideration an essential element of the crime16

of murder, i.e., the absence of provocation. This assertion , however, merely begs the question whether there was any evid ence of provocation. (See People v. Ngo (2014) 225 Cal.App.4th 126, 158, fn. 20 , italics added, citation omitted [recognizing
"that when provocation is put at issue , proof of malice requires the prosecution to prove the absence of provoc ation"] ; see also People v. Rios (2000) 23 Cal.4th 450,
461

- 462 , citations omitted ["[ U]nless the People's own evidence suggests that the
killi ng may have been provoked . . . , it is the defendant's obligation to proffer some showing on these issues sufficient to raise a reasonable doubt of his guilt of murder"] .) Despite the fact that no s uch evidence was present here, appellant's claim is belied by the fact that the jur ors were instructed th ey could convict

app ellant of second degree murder if they found he was provoked. (CALCRIM No. 522.)
B. Involuntary Manslaughter Appellant contends t he court also violated a sua sponte duty to instruct the jury on involuntary manslaughter based on the theory that appellant
suffered from a mental d isorder that prevented him from forming the intent to kill.
We are not persuaded.

I nvoluntary manslaughte r o ccurs where there is an unlawful killing of a human being wi thout malice " in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. " (§ 192, subd. (b).) Evidence of a mental disorder is admissible and relevant to prove that a defendant lacked the specific intent to kill, such that he or she could be found guilty
of no more than in voluntary manslaughter. (§ 28; People v. Rogers (2006) 39 Cal.4th 826, 884. )

Dr. Hoagland's testimony that appellant committed the crime while in
a dissociative state was in sufficient to require instructions on in voluntary17

manslaughter . The doctor's testimony on this point was of no assista nce. "[A] ny material that forms the basis of an expert's opinion testimony must be reliable. [Citation.] For ' the law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a ho use built on sand, the expert's opinion is no better than the facts on which it is based. ' [Citation.]" ( People v. Gardeley (1996) 14 Cal.4th 605, 618 , disapproved on another ground in People v. Sanchez (June 30, 2016) __ Cal.4th __ 2016 WL3557001, *13, fn. 13 .) Dr. Hoagland's opinion is based on appellant's inadmissible hearsay statements , and the jury was instructed that the doctor's
reliance on those statements c ould not be considered "as proof that t he information
contained in the statements is true. " (CALCRIM N o. 360.) We presume the jury understood and followed this instruction. ( People v. Sanchez (2001) 26 Cal.4th 834, 852.) Even if the court should have instructed on involuntary manslaughter,
the error would be harmless. Under the instruction s that were actually given, the jury necessarily would have acquitted appellant h ad it found that he lacked the
intent to kill b y reason of a mental disorder. (CALCRIM. No. 3428.) In con victing
him of f irst degree murder the jury found he " acted with exp ress malice, necessarily rejecting the view that the killing was manslaughter. Because the jury resolved the factual finding requisite to involuntary manslaughter against [appellant] , he cannot have been prejudiced by the lack of an instruction on involun tary manslaughter
instruction [ sic ]

. [Citation.]" ( People v. Cook (2006) 39 Cal.4th 566, 597.)
IV. Denial of Defense Request to Reopen Appellant contends the court erred in denying his request to reopen
after both sides had rested so that he could testi fy in his own behalf. He claims the
refusal amoun ts to a violation of his constitutional rights to due process and a fair trial and his right to present a defense. We are not persuaded.18 " The decision to reopen a criminal matter to permit the introductio n of
additional evidence is a matter left to the broad discretion of the trial court. [Citation s .] " ( People v. Jones (2012) 54 Cal.4th 1, 66.) " In determining whether a trial court has abused its discretion in denying a defense request to reopen, the

re viewing court considers the following factors: ' (1) the stage the proceedings had
reache d when the motion was made; (2) the defendant's diligence (or lack thereof) in p resenting the new evidence; (3) the prospect that the jury would accord the new

e vidence undue emphasis; and (4) the significance of the evidence. ' [Citation.] " ( People v. Jones (2003) 30 Cal.4th 1084, 1110 ( Jones ) .)

When the defense rested, th e court had yet to decide w hether to instruct the jury on voluntary manslaughter based on sudden quarrel or heat of passion. The court did not announce its decision until after both sides had rested. Defense counsel then asked the court to allow appellant to testify, claiming she had
advised him not to do so based on the prior understanding that the jury would be instructed on voluntary manslaughter. Counsel acknowledged, however, that there was no prior understanding that the court would instruct on sudden quarrel/heat of passion voluntary manslaughter and that the prosecutor had objected to any su ch
instructions. Counsel added that it would also be necessary to recall Dr. Hoagland and the defense's gang expert.

The court denied the request to reopen. In addition to pointing out
that appellant had several opportunities to testify during trial and that Dr. Hoagland's testimony had been fatally undermined by his failure to do so, the court also reasoned that "[t]he defendant doesn't necessarily in any case get to know what the jury instructions are going to look like before he decides whether to tes tify . . . . [¶] [L]ike any other defendant, [he] makes his decision about what evidence to put out there and the Court decides based on the evidence that's been put out there what the instructions are going to be. Not the other way around. . . . The i nstructions follow the presentation of proof."19 The court did not abuse its discretion. The late stage of the proceedings plainly weigh ed in favor of the court's ruling. Appellant also had ample opportunit y to testify

. Although d efense counsel claim ed s he had advis ed appellant not to testify based upon the parties' earlier agreement that the jury w ould be instructed on voluntary manslaughter, counsel knew that the agreement related to a theory other than sudden quarrel/heat of passion

. Given the late st age of the proceedings, there was also a danger that the jury would accord undue emphasis to the new evidence. Finally, the significance of the evidence cannot be assessed because counsel declined to make an offer of proof as to the substance of a ppellant 's proposed testimony.

Appellant's argument that the court abused its discretion in denying his request to reopen con sists of an inapt analogy to Jones , supra , 30 Cal.4th 1084, in which the court found an abuse of discretion in refusing to reopen after bo th sides
had rested , and an unsuccessful attempt to meaningfully distinguish People v.
Earl e y (2004) 122 Cal.A p p.4th 542 ( Earl e y ) , in which the court found no abuse of
discretion. In Jones , the defendant merely sought to reopen in order to lay the
foundat ion for a photograph of a man who was also depicted in other photographs that had been admitted into evidence, and a photograph of another man who had actually been present in court. ( Jones , supra , at p. 1110.) In reversing, the court reasoned that reope ning for such a limited purpose would not have resulted in an undue consumption of time and that no further evidence would have been
introduced. ( Id. at p. 1111.) This bears no resemblance to the instant case, which, among other things, would have requir ed the recalling of witnesses who had already
been excused. Earley is much closer to the instant case. The trial court in Earley
, like the trial court here, refused to reopen so that the defendant could testify a fter
both sides had rested but before the jury had been instructed. In concluding that th is ruling was n ot an abuse of discretion, the Court of A ppeal reasoned in part that20

"[h]ad [ the ] defendant been permitted to testify it would have prolonged the trial and may have required the prosecution to present rebuttal testimony from an expert who, in turn, would first have to conduct further testing." ( Earley
, supra , 122 Cal.App.4th at p. 546.) Although the court also concluded that the defendant's proffered testimony "did not propose to offer any new , particularly significant
, evidence " ( ibid. ), here we can only surmise as to the substance and extent of the proposed testimony. In any event, Earley does not purport to set a benchmark for rulings on motion s to reopen to allow a defendant to testify . T he decision whether to reopen in these circumstances "is almost wholly within the discretion of the trial judge" and "[h]is ruling must stand in the absence of a clear showing of abuse of
discretion. [Citation.] " ( People v. Kohn (1968) 258 Cal.App.2d 368 , 377.) Appellant fails to make such a showing here.
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.James P. Cloninger, Judge Superior Court County of Ventura

_________________ _____________
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sulli van Pithey, Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.