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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Bennie Lee POLECAT, Defendant and Appellant.


Decided: April 27, 1987

Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, Joan W. Cavanagh and Cynthia A. Thomas, Deputy State Public Defenders, Sacramento, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Garrett Beaumont and Karen Ziskind, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


Defendant Bennie Lee Polecat was convicted of the murder (Pen.Code, § 187)1 and robbery (§ 211) of Doris Willadean Jones.   The jury found true the special circumstance that the murder was committed in the course of the robbery (§ 190.2, subd. (a)(17)(i)).   The jury also convicted defendant of the attempted murder of Vernon Vera (§§ 664/187) and found true the special allegations that defendant used a knife (§ 12022, subd. (b)) and intentionally inflicted great bodily injury (§ 12022.7) in committing that offense.   In the penalty phase of defendant's trial the jury found the appropriate punishment to be death, but the trial court set aside the death verdict and sentenced defendant to prison for life without possibility of parole.

Defendant appeals from the ensuing judgment, contending the trial court prejudicially erred:  (1) in admitting into evidence his statements during the booking process;  (2) in refusing to sever his trial for attempted murder from his trial on the other charges;  (3) in instructing the jury;  and (4) in excluding proffered expert testimony that defendant, because of mental disease or defect, had not actually formed the requisite mental states.   We find defendant's contentions unmeritorious and will affirm the judgment.


About 7:30 in the evening of January 17, 1983, defendant and Dennis Beeman visited The Club, a bar in Lindsay.   While there, defendant asked the owner at least twice whether he knew a certain woman;  the owner did not.   Nevertheless, defendant told the owner, “She won't live to see the sun come up.”   He then left the bar.

At 8:50 the same evening defendant showed up at the Calvary Assembly of God church in Porterville, where he was known to the pastor.   He was walking slowly while there, and the pastor could tell he had been drinking.   When he left, he ran over some shrubbery in front of the church.

About 20 minutes later, several neighbors of Doris Willadean Jones saw a slow-moving older car approach Mrs. Jones's residence.   Less than an hour thereafter defendant and Beeman pulled into a Texaco service station in Porterville in a beat-up Plymouth.   While there Beeman took a gun from the car and flashed it around.   Then they filled the car's gas tank and paid for it with a credit card belonging to Mrs. Jones.   The station attendant testified defendant was talking a lot until the attendant advised him the less defendant talked the better off both of them would be.   Among the things defendant said was that he had beaten somebody.

A short time later defendant and Beeman entered the 3–7–11 Club in Porterville.   The waitress there saw a gun in Beeman's hand.   Defendant told her they had a gun and wanted no trouble.   She noticed defendant and Beeman each wore a single glove.   Defendant's was on his left hand and Beeman's on his right hand.   After the waitress moved away, defendant and Beeman started talking to other customers at the bar.   A few minutes later defendant called the waitress over and told her he had killed a lady.   When the waitress asked him why, defendant held out his gloved hand and said, “I choked her until I couldn't choke her no more, then I stomped her to death.”   Defendant later told the waitress the lady's name, where she lived, and what kind of car she drove, but the waitress could not recall the actual name and address at trial.   Defendant also gave her conflicting weird accounts of why he killed the lady.

Later at the same bar, defendant got into a fight with Vernon Vera over their respective Indian heritage.   Although the waitress did not see a knife during the fight, she assumed defendant was stabbing Vera in the face because blood was everywhere.   The waitress estimated defendant struck Vera at least six to eight times.   She testified defendant did not seem to be drunk at the time.

Vera could recall very little of his fight with defendant and had no memory of talking to him.   Vera was hospitalized three days as a result of injuries suffered in the fight.   After the fight, Vera's cousin, Martin Silvas, took Vera to the hospital.   He overheard defendant say he was tired of killing, and he saw defendant and Beeman leave the bar and get into a blue Plymouth.

Between 12:30 and 1 a.m. the following morning defendant entered the Hi-Ho bar in Porterville alone.   Deborah Wagstaff waited on him and refused to serve him alcohol.   Defendant left through the front door and reentered through the back door telling Wagstaff she had better serve him or the bar would not open the following night.   Defendant showed Wagstaff a gun and told her he had already killed one woman and it would not bother him to kill another one.   Wagstaff told defendant to leave and he did.

Defendant showed up at the Mecca bar a few minutes later.   He had been in the Mecca about 20 minutes earlier;  while there he had told Jannie Davis, the bartender, a story similar to that which he had told Wagstaff.   He had let Davis know then that he had a gun.   While defendant was gone, presumably at the Hi-Ho, Davis had called the police and was talking to the police when defendant returned.   He said to Davis, “ ‘If you're calling the police I'm going to blow your (indicating) [sic ] head off,’ cussing in between is what I mean.”   The police arrived and took defendant into custody.   However, the police found no gun on defendant or in the Mecca bar.

The two Tulare County sheriff's officers who responded to the report of the fight between defendant and Vera learned from Vera defendant's name and description and the description and license number of the car defendant was driving.   The officers located the car near the Frontier Club and contacted Beeman inside.   He appeared to be drunk and was arrested for public intoxication.   During the booking search of Beeman, Mrs. Jones's credit cards were found in his possession.   When the officers were unable to reach Mrs. Jones by telephone, one of them, John Benas, went to her residence.   Benas found Mrs. Jones's body lying on the living room floor;  the upper portion of her body was covered with a blanket and pillows.   In the kitchen he found a woman's purse with its contents strewn about it.   A wallet was there, but the credit card holder was empty.   Two clocks had been unplugged and stopped at 9:43 and 9:50 p.m., respectively.   He also saw a stereo and speakers lying on a bed.

Jay Salazar, with the violent crime unit of the Porterville Sheriff's Department, had primary responsibility for the investigation of the apparent homicide of Mrs. Jones.   In the living room Salazar found a blood smear and part of a human ear which he believed were connected to the homicide.   He also found a pair of wire-rimmed eyeglass frames lying on the floor.

Pursuant to a warrant, Salazar conducted a search of defendant's car, the older Plymouth previously described.   In the trunk Salazar found a clock radio which had stopped at 9:41.   He also found a picture of the victim and her husband, credit cards, and other miscellaneous cards with the name of the victim or her husband.   He found the victim's checkbook.   About 4:50 a.m., Salazar took possession of a Sturm-Ruger .22 caliber single-action pistol which was half-cocked and fully loaded.   The gun had been recovered by another officer from a planter box located about a half a block away from the Mecca bar.   The gun was identified at trial by the victim's son-in-law, Paul Wing, as having belonged to Mrs. Jones.

Sergeant Dale Doty went to the Mecca bar in response to the phone call from Jannie Davis.   He arrived just in time to see defendant in the company of two Porterville police officers.   At that time Doty was investigating a report that defendant had been brandishing a handgun.   He arrested defendant for public drunkenness, based on defendant's observed condition.   Defendant had difficulty in standing;  his speech was thick, blurred or slurred;  and he had a strong odor of alcohol about him.   He smiled when questioned, and his smile was inappropriate.   His eyes were bloodshot and watery.   Doty patted defendant down for weapons but found only a black-handled pocket knife.   At about that time Doty received information concerning the homicide victim;  Doty then transported defendant to the Porterville sheriff's substation.   During the booking process, the following exchange occurred between defendant and Sergeant Doty:

“A. [Sergeant Doty] He asked me if I'd known Henry Jones.   I told him I had.   I told him that he used to be a Deputy here, meaning Porterville substation.   Mr. Polecat replied, ‘I really liked that guy.   He was like a father to me.   I lived with him for two and a half years.’   And then I responded, ‘You know he died.’   Mr. Polecat said, ‘Yeah, I know, but it was that wife of his and those kids that killed him.’   Then he went on to say something about having a mission, ‘And no one could get in the way once he got the word.   Not even the kids.”

Detective Gary Harris, the commander of the violent crime unit in the Tulare County Sheriff's Office, was also involved in the investigation of the death of Mrs. Jones.   Harris was present when blood samples were drawn from defendant, and Harris turned the samples over to the crime lab.   The blood samples were taken at 4:45 a.m. on January 18, 1983;  at that time defendant showed no signs of being under the influence.   Harris subsequently Mirandized defendant,2 and Harris believed defendant understood the admonishment.   Defendant made affirmative responses when asked if he understood.   When Harris asked defendant if he would sign a form indicating he had been advised of his rights, understood them, and elected to waive them, defendant said he would sign.   Harris handed him a pen, and defendant appeared to sign the form before handing it and the pen back to Harris.   However, Harris, who had already begun questioning defendant, did not look at the form and therefore did not observe that defendant had not actually signed the form.

In response to Harris's questions, defendant acknowledged he had been at the Jones residence the previous evening with Dennis Beeman prior to going to the 3–7–11 Club.   When Harris told defendant that Mrs. Jones was dead, defendant told Harris he knew nothing about her death.   He stated Jones was dressed as if preparing for bed at the time of his visit, and he only visited for 15 to 20 minutes.   He denied harming Mrs. Jones in any way.

When asked about the incident at the 3–7–11 Club, defendant told Harris he had been at the club only a short time when another man started “messing” with him.   Defendant described how he beat the other man up but stated he was holding a closed pocket knife in his hand and striking his opponent only with the butt of the knife.   He told Harris that with the first swing he tried to take out his opponent's eye;  defendant also told Harris he was out to kill his opponent.   Defendant terminated this interview after about 40 minutes.

Detective Brian Johnson, assigned to the crime lab with the Tulare County Sheriff's Department, participated in processing defendant at the Porterville substation.   During the processing defendant began to make statements about the killing of Mrs. Jones.3  The entire processing of defendant took over an hour and a half, during which time Johnson testified no one asked any questions of defendant although Johnson did have to talk to him to tell him where to stand, what to do, etc., as necessary for the processing.

Sergeant Harold Jones, assigned to the violent crimes unit of the Tulare County Sheriff's Department, was involved in investigating Mrs. Jones's death and was present during the processing of defendant.   When Sergeant Jones, who had partially overheard defendant's first statement about the death of Mrs. Jones, discussed it further with Detective Johnson, Sergeant Jones began taking notes and recorded a number of incriminating statements which defendant made during this monologue.   He also affirmed that neither he nor Detective Johnson had asked defendant any questions.

Criminalist Stephen O'Clair, with the Department of Justice, received the blood samples that had been drawn from defendant and from Mrs. Jones and compared these to the bloodstains found on defendant's jeans.   The stains were inconsistent with defendant's blood and with that of Beeman, but they were consistent with the blood of Mrs. Jones.

Finally, Dr. Leonard Miller, a pathologist, performed an autopsy on the body of Mrs. Jones and noted that the principal trauma was confined to the neck and head.   Both areas showed signs of multiple bruises, abrasions, and lacerations.   In the center of the victim's forehead was a half-moon-shaped bruise consistent with the heel of a shoe or “something of that nature.”   A similar bruise was found on the left cheek.   The jaw was broken and dislocated.   Miller noted two other significant areas of trauma.   There had been a blunt, hard trauma to the back of the head.   The scalp was suffused with blood, and the brain itself was covered with a thin layer of blood.   This was consistent with the external injuries to the face and the fractured jaw in terms of the degree of force used.   In fact, the actual cause of death was a fracture of the hyoid bone at the base of the tongue which caused swelling and hemorrhage and resulted in death by suffocation.   The right shoulder was dislocated, and there were broken ribs in the back, as well as bleeding in the chest and the back of the abdominal cavity.   Miller testified these injuries could only have been caused by “blunt force of considerable magnitude.”

Defense Case

Defendant called his youngest brother, Herman Polecat, who testified to defendant's earlier commitments to Tulare View Hospital for psychiatric problems.   In the early morning hours of January 16, 1983 (Sunday morning) Herman received a phone call from defendant.   Defendant told his brother he needed help to get his car back from a “kid” to whom defendant had lent it.   Herman agreed to meet defendant at a restaurant called the Pig Pen.   While there defendant appeared “hyper or uptight” and was fidgeting around in the booth.   Defendant asked Herman's help in beating up two men in a nearby booth who defendant said were looking at him, but Herman refused.   After leaving the restaurant, Herman did not see defendant again until after defendant's arrest.

Herman also testified he and his brother had known Mrs. Jones since childhood because she was a friend of their parents.   Herman believed that defendant and Henry Jones (Mrs. Jones's deceased husband) were good friends and also that defendant was a friend of Mrs. Jones.   However, Mrs. Jones had once called Herman to tell him defendant had been to her house to borrow some money and she had had some difficulty getting defendant to leave.   Herman told her to call him if it happened again.   Mrs. Jones frequently asked Herman about defendant, specifically whether defendant was getting better.

Defendant also called as a witness Herman's wife, his sister-in-law Peggy Polecat.   Her testimony with respect to the family's relationship with Mrs. Jones and with defendant was consistent with that of her husband.

Defendant's final witness was Dr. Richard Berkson, a psychiatrist who had been on the staff of Tulare View Hospital in 1974 when defendant was first committed.   Dr. Berkson testified defendant was a schizophrenic—paranoid type, whose condition was controllable with medication, although not curable.   Unless confined, however, defendant was inconsistent about taking the medication which frequently resulted in flareups of the delusional behavior characteristic of his illness.


I. **

 II. Trial Court's Denial of Defendant's Motion to Sever Trial of the Attempted Murder Charge From the Murder, Robbery, and Burglary Charges.

Defendant next contends the trial court erred in denying his motion to sever the charge of attempted murder of Vernon Vera from the charged offenses committed against Doris Willadean Jones, including the charge of first degree murder with special circumstances.

Defendant's primary basis for seeking severance in the trial court was the asserted lack of cross-admissible evidence between the crimes, i.e., if severed, evidence of defendant's assault on Vera, including defendant's incriminating statements to police officers concerning this event, would be inadmissible in a trial on the charges of crimes against Mrs. Jones.   Defendant contended this evidence would “have a serious prejudicial effect on the jury” and this problem would be compounded “because the evidence relative to the crime against Vernon Vera is strong whereas the proof of the murder of Doris Willadean Jones is based on circumstantial evidence.”   Defendant also noted that the death penalty was being sought for the Jones murder.

 With respect to the prosecution of a multiple count information, section 954 provides in pertinent part:

“An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, ․ [T]he court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately․”

The assaultive nature of all these charged crimes made them different offenses of the same class (see, e.g., People v. Balderas (1985) 41 Cal.3d 144, 170–171, 222 Cal.Rptr. 184, 711 P.2d 480) and the marked temporal and spatial propinquity of the crimes rendered them “connected together in their commission.”  (See, e.g., People v. Matson (1974) 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 528 P.2d 752.)   The statutory requirements for joinder under section 954 have been satisfied in this case;  defendant does not contend otherwise.   Defendant, however, “directs what is essentially a due process argument toward the second prong of section 954” (Williams v. Superior Court (1984) 36 Cal.3d 441, 447, 204 Cal.Rptr. 700, 683 P.2d 699), contending the trial court abused its discretion in denying his motion to sever.

On appeal, defendant advances essentially the same arguments he made to the trial court.   Relying primarily on People v. Smallwood (1986) 42 Cal.3d 415, as modified at 42 Cal.3d 710a, 228 Cal.Rptr. 913, 722 P.2d 197, and Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 172 Cal.Rptr. 86, defendant points to the importance placed by both the Supreme Court and the Court of Appeal on certain specified criteria by which to gauge the prejudice to a defendant resulting from a trial on multiple counts.   Those criteria were clearly articulated in Williams v. Superior Court, supra, and predominant among these factors is the cross-admissibility of evidence.   As the court in Williams pointed out, “Since cross-admissibility would ordinarily dispel any possibility of prejudice [citations], we must inquire, had the severance motion been granted, would the evidence pertinent to one case have been admissible in the other under the rules of evidence which limit the use of character evidence or prior similar acts to prove conduct (Evid.Code, § 1101, subds. (a) and (b)).”  (Williams v. Superior Court, supra, 36 Cal.3d at p. 448, 204 Cal.Rptr. 700, 683 P.2d 699.)   Because defendant makes this argument in the context of a posttrial appeal, our “appropriate review ․ requires examination of the evidence produced at trial to determine whether joinder was prejudicial.”  (People v. Smallwood, supra, 42 Cal.3d at p. 710a, 228 Cal.Rptr. 913, 722 P.2d 197.)4

 Defendant vigorously argues on appeal, as he did at trial, that evidence of the attack on Vera and subsequent, related statements to the police would not have been admissible on any theory in a separate trial of the counts involving Mrs. Jones.   Notwithstanding the People's apparent concession of this point, we are not persuaded.

The prosecution was, as defendant contends, apparently proceeding on a theory of felony murder, i.e., that defendant went to the Jones residence with the specific intent to rob Mrs. Jones and killed her incidental to that act.   Thus defendant argues the stronger evidence of an admitted intent to kill in the Vera attack would buttress the weaker evidence of specific intent in those counts involving Mrs. Jones.   While it could certainly fall outside the boundaries of Evidence Code section 1101 to permit a defendant's intent in one case to be proved by evidence of his intent in another case, defendant overlooks the relevance of evidence of the attack on Vera with respect to the defense he himself offered, such as it was, to the murder of Mrs. Jones.

The only defense that can be deduced from the evidence presented on defendant's behalf, i.e., the testimony of his brother and of the psychiatrist who had treated defendant off and on for almost 10 years, was that his criminal culpability for the death of Mrs. Jones should somehow be mitigated because of the delusions defendant was suffering at the time of her death.

Defendant initially denied to Detective Harris any involvement in Mrs. Jones's death.   He told Harris he had left Mrs. Jones alive on the night of January 17, 1983.   However, his subsequent inculpatory statements during the booking procedure discussed above suggest not only defendant's involvement in the killing itself but also a “motive” intertwined with defendant's religious delusions.   Evidence was presented that defendant blamed Mrs. Jones for the death of her husband, who had been defendant's friend;  more to the point is evidence that defendant killed Mrs. Jones because she was a witch and defendant had been ordered by God, or someone speaking for him, to kill a witch.

This defense does not deny the existence of an intent to kill but rather asks the trier of fact to mitigate that intent in light of the mistaken delusion which prompted it.   Of course, defendant in this case withdrew his plea of not guilty by reason of insanity based on medical evaluations that at the time of the offense defendant was legally sane, i.e., defendant's mental disturbance did not prevent him from understanding the nature and quality of his acts nor make him incapable of appreciating their wrongfulness.   Nevertheless, defendant presented evidence of his chronic schizophrenic, paranoid-type condition, including evidence that as a result of this condition defendant suffered delusions not only of his own grandiosity and special mission from God but also persecution at the hands of persons involved in witchcraft, Satanism, etc.   To the extent such evidence is offered to mitigate the offense, defendant is in effect saying to the trier of fact, “Yes, I intended to kill the victim, but my intent was based on a false belief.   But for this false belief or delusion, I would not have acted as I did.”   Defendant is thus arguing that his vicious beating of Mrs. Jones would not have occurred absent his delusional motivation.

When, however, defendant commits a similar attack within a short period of time absent any delusional framework, evidence of such an attack is relevant and, we believe, admissible, to rebut the evidence offered in mitigation by defendant himself.   This is not a case in which the People have offered evidence of uncharged acts similar to those for which a defendant is on trial simply to show a predisposition to commit offenses of that kind.   Although in one sense this basis for admissibility does rest upon an inference of predisposition, it is responsive evidence offered to rebut defendant's claim of lack of any disposition to commit the specific offenses against Mrs. Jones except for his mental illness.

The view we have expressed on the cross-admissibility of the evidence on the various charges in this case is supported by existing authority.   In People v. David (1939) 12 Cal.2d 639, 647–648, 86 P.2d 811, the court held:

“Evidence which tends to prove a sane motive for the crime and an ability on the part of the accused to devise and execute a deliberate plan is material to the issue raised by a plea of not guilty by reason of insanity.  [Citations.]   Furthermore, it is the rule that where a defense of insanity is interposed and evidence of the previous conduct of the defendant is offered by him, the prosecution is not limited to an explanation or denial of the particular conduct of the defendant, but may offer evidence of other acts which he committed within a reasonable time before or after the crime as tending to show that he was sane at the time of the offense for which he is then being tried.  [Citations.]   The period of time over which an inquiry of this character should be extended is a matter which rests largely within the discretion of the trial court.  [Citation.]”

A similar result was reached in People v. Gay (1972) 28 Cal.App.3d 661, 104 Cal.Rptr. 812.   There the defendant appealed from his conviction of two counts of first degree murder and one count of assault with intent to commit murder.   At trial defendant had presented evidence of a history of mental problems starting when he was 13 years old and encompassing several periods of hospitalization.   The latest period of hospitalization was some three months prior to the offenses for which defendant had been convicted.   The defendant testified to use of alcohol and marijuana preceding the killings and also to recurrent hallucinations on that day of “voices” directing his actions;  he also testified he had heard the voice many times before and had had many conversations with it.   The voice had told him before the killings that the victims were taking advantage of him.   After a short recess, the defendant elected not to continue his testimony and was not cross-examined.

In rebuttal, the People presented testimony that nine days earlier the defendant had committed a robbery similar to the theft offenses related to the murders for which he was then on trial.   The victim of that robbery testified not only to the modus operandi but also testified defendant did not drink or use drugs during that time nor did he observe anything unusual about the defendant's speech or conduct.   On review the court rejected the defendant's contention that this evidence was improperly admitted, relying in part on People v. David, supra, 12 Cal.3d 639, 86 P.2d 811.   The court stated in part, “Proof of the defendant's conduct and state of mind during that incident [the robbery nine days before the murders] tended to contradict defendant's testimony of diminished capacity and tended to prove intent, motive, premeditation, deliberation and malice.”  (People v. Gay, supra, 28 Cal.App.3d at p. 670, 104 Cal.Rptr. 812.)

In light of the authorities reviewed, we conclude that evidence of the charged assault against Vera was cross-admissible on the charged crimes against Mrs. Jones.   Given the only defense defendant apparently had to the murder of Mrs. Jones, i.e., the mitigating effect, if any, of his delusional belief that the victim was a witch responsible in some manner for persecuting him, evidence of a similar, brutal assault on another person (Vera) some two hours after the murder, under circumstances suggesting no possible delusional framework, is properly admissible to rebut the evidence presented by defendant.   This is simply not a case in which the other evidence would be admissible, if at all, only as evidence of defendant's disposition to commit the offense against Mrs. Jones.   As our Supreme Court pointed out in Smallwood, supra, 42 Cal.3d at page 425, 228 Cal.Rptr. 913, 722 P.2d 197, “[i]f the two offenses are cross-admissible, there will probably be little or no prejudice from joinder.”

 Even assuming arguendo that evidence of the various crimes charged against defendant was not cross-admissible, our review does not end with such a finding, and analysis of the other criteria outlined in Williams demonstrates the trial court did not abuse its discretion in denying defendant's motion for severance.  “[A] determination of prejudice is a highly individualized exercise, necessarily dependent upon the particular circumstances of each individual case.”  (Williams v. Superior Court, supra, 36 Cal.3d at p. 452, 204 Cal.Rptr. 700, 683 P.2d 699.)   While defendant characterizes the assault against Vera and the murder of Mrs. Jones as strikingly dissimilar, we do not accept that characterization.   The circumstances of the death of Mrs. Jones are not entirely clear, but the method of her death is;  Mrs. Jones was brutally beaten to death.   Although defendant characterizes the assault on Vernon Vera as a drunken brawl with knives in a bar, the precise method defendant used was described by witnesses not as a stabbing but as a hitting toward the face area.   Defendant was hitting Vera with a knife, and such repeated blows to the face are consistent with the brutality of the attack on Mrs. Jones.

Second, evidence of the attack on Vernon Vera is not particularly inflammatory.   It is not like the child molestation charges in Coleman v. Superior Court, supra, 116 Cal.App.3d 129, 172 Cal.Rptr. 86 nor the evidence of gang membership in Williams v. Superior Court, supra, 36 Cal.3d 441, 204 Cal.Rptr. 700, 683 P.2d 699.   While both offenses in the instant case are brutal and somewhat senseless crimes, the courts in both Williams and Coleman seemed to be concerned with a more particularized aspect of the offense, factors which might provoke a sense of outrage or repulsion in the jury totally unrelated to the offense charged.  (Compare People v. Balderas, supra, 41 Cal.3d 144, 174, 222 Cal.Rptr. 184, 711 P.2d 480.)

 Nor is the third prong of Williams satisfied in this case.   Although the evidence tying defendant to the assault on Vera was direct, eyewitness testimony while the evidence linking him to the murder of Mrs. Jones was circumstantial, the evidence on both counts was very strong.   Therefore, this is not a case where a strong case is impermissibly joined to a weaker one to buttress the prosecution's evidence in the weaker case.   Finally, while the court in Williams noted that great care must be taken when a capital offense is joined with a noncapital crime, this factor alone does not mandate severance.   Such a contention was specifically rejected by the California Supreme Court in People v. Balderas, supra, 41 Cal.3d at page 177, 222 Cal.Rptr. 184, 711 P.2d 480.

 In this case there is the usual factor favoring joinder, i.e., it avoided “the waste of public funds which may result if the same general facts were to be tried in two or more separate trials.”  (People v. Brock (1967) 66 Cal.2d 645, 655, 58 Cal.Rptr. 321, 426 P.2d 889, disapproved on other grounds in People v. Cook (1983) 33 Cal.3d 400, 413, fn. 13, 189 Cal.Rptr. 159, 658 P.2d 86.)   Joinder of the charges in this case specifically promoted judicial economy and efficiency by avoiding duplication of much of the evidence in separate trials.   Joinder also avoided inconvenience to the witnesses whose testimony about defendant's conduct would have been relevant in separate trials.

We conclude that the trial court did not abuse its discretion in denying defendant's motion for severance.

 III. The Trial Court's Instructions to the Jury on Consideration of Mental Illness and Intoxication.

Defendant contends the trial court had an obligation to instruct the jury, sua sponte, that evidence of defendant's history of mental illness, as well as evidence of his intoxication on the night of the murder of Mrs. Jones and the assault on Vernon Vera, should be considered in two important respects.   First, defendant points out that the prosecution proceeded on alternate theories of first degree premeditated and deliberate murder and first degree felony murder.   He then argues that the trial court committed reversible error in failing to give to the jury a distinct instruction that they should consider evidence of his mental illness or intoxication in determining whether he actually premeditated and deliberated the killing of Mrs. Jones, one of the specific mental states necessary to a conviction of nonfelony first degree murder.   Second, defendant asserts error in the trial court's failure to link the significance of this evidence, i.e., his mental illness or intoxication, to the question of whether defendant actually possessed the intent to kill Mrs. Jones, necessary for an affirmative finding on the special circumstance as alleged.   Significantly, defendant does not contend that the instructions actually given were erroneous, merely that they did not go far enough in pinpointing for the jury the connection between evidence of a mental impairment and the formation of each separate mental state required for conviction of first degree murder.

Defendant relies upon the well-established rule that “ ‘ “[i]t is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.  [Citations.]   The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.”  [Citation.]’ ”  (People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311.)

 However, as Witkin points out:

“There is an obvious contradiction between the rule that a party must request proper instructions and the rule that the judge must instruct the jury without request [citation].   In resolving it the courts have developed the following loose distinction:  The judge is required to instruct only on general principles which are necessary for the jury's understanding of the case;  he need not instruct, without request, on specific points or special theories which might be applicable to the particular case.  [Citations.]”  (Witkin, Cal.Criminal Procedure (1963) Trial, § 472, p. 478.)

Accordingly, we find no merit in defendant's argument.   The report of the jury instruction conference between both counsel and the trial court and the actual instructions to the jury are in the record on appeal.   Significantly, the jury was given CALJIC No. 3.31 (1980 rev.), as modified (the modifications are underlined):

“In each of the crimes and allegations charged in the Information, there must exist a union or joint operation of act or conduct and a certain specific intent or mental state in the mind of the perpetrator.   Unless such specific intent or mental state exists the crime to which it relates is not committed.

“The specific intent or mental state required is included in the definition of the crimes and allegations charged.”

The jury was instructed almost immediately thereafter with modified CALJIC No. 4.21 (1981 rev.), at the request of the People, and with CALJIC No. 3.36 (1981 new), at the request of defendant, as follows:

“If the evidence shows that the Defendant was voluntarily intoxicated at the time of any alleged offense, the jury should consider the state of intoxication in determining if the Defendant had the required specific intent or mental state.   If from all the evidence you have a reasonable doubt whether the Defendant formed such specific intent or mental state, you must give the defendant the benefit of that doubt and find that he did not have such specific intent or mental state.  [CALJIC No. 4.21 (1981 rev.).]


“․ Evidence has been received regarding a mental disease, mental defect or mental disorder of the Defendant at the time of the offenses charged in the Information.   You may consider such evidence solely for the purpose of determining whether or not the Defendant actually formed the mental state which is an element of the offenses charged.  [CALJIC No. 3.36 (1981 new).]”

The instructions the trial court read still later included CALJIC No. 8.10 (1983 rev.) defining murder, CALJIC No. 8.11 (1983 rev.) (Malice Aforethought—Defined), CALJIC No. 8.20 (1979 rev.) (Deliberate and Premeditated Murder), CALJIC No. 8.21 (First Degree Felony-Murder), CALJIC No. 8.30 (Unpremeditated Murder of the Second Degree), CALJIC No. 9.10 (1982 rev.) (Robbery—Defined), and CALJIC No. 8.40 (1979 re-rev.) (Voluntary Manslaughter—Defined).

Immediately after the trial court read to the jury CALJIC No. 8.11 on malice aforethought, it also gave the jury special instructions offered by defendant and modified by the court to provide:

“If from all the evidence you have a reasonable doubt that the Defendant at the time of the alleged crime because of mental illness, mental defect, intoxication or any other cause actually formed the intent to kill, then you may not find that he harbored express malice.   If from all the evidence you have a reasonable doubt that the Defendant at the time of the alleged crime because of mental illness, mental defect, intoxication or any other cause actually appreciated the high degree of risk involved or acted with a base anti-social purpose and design, or acted with a wanton and conscious disregard for human life, then you may not find that he harbored implied malice.”  (CALJIC No. 4.21 (1981 rev.) as modified.)

Defendant now contends the trial court should have modified, sua sponte, CALJIC No. 8.20 to expressly instruct the jury they could consider evidence of defendant's mental defect or disease and intoxication in determining whether he actually premeditated and deliberated.   Defendant's argument overlooks the clear provisions of modified CALJIC No. 3.31, CALJIC No. 3.36 and modified CALJIC No. 4.21.   Those instructions, when read with the instructions defining the various crimes with which defendant was charged, inform the jury of all general principles of law relevant to the issues raised by the evidence.  (See People v. Wickersham, supra, 32 Cal.3d at pp. 323–324, 185 Cal.Rptr. 436, 650 P.2d 311.)   Defendant would impose on the trial court the duty to instruct, even in the absence of a request, on specific or pinpointed application of particular theories of the defense case.   This we decline to do.   Defendant's complaint that only a few of the special pinpoint instructions—those requested by defendant—were given would be more compelling, both practically and logically, were it based on the trial court's rejection of modifications to standard CALJIC instructions or specially tailored instructions prepared and offered by defendant rather than on a sua sponte duty.

Recent cases stringently apply the requirement that the trial court instruct sua sponte on all elements and principles of law closely connected with the case.   There has been a corresponding critical interest in trial courts' rejection of so-called “pinpoint jury instructions,” specifically that type of instruction which focuses the jury's attention on evidence particular to an individual case from which might be engendered a reasonable doubt.   Although the seminal cases concerning so-called “pinpoint” jury instructions involve eyewitness testimony, other areas of the law are equally amenable to tailor-made jury instructions geared to the defendant's particular theory of the case or of defense.   Despite the propriety, however, of giving pinpoint jury instructions when requested, so long as they are clear, nonargumentative, and nonredundant, this remains an area particularly governed by the rule that failure to request such an instruction precludes assertion of instructional error on appeal.

The instruction defendant advances in the instant case is the kind of instruction that should be treated like a pinpoint jury instruction—it must be requested if the issue is to be preserved for appeal.   The trial court here gave the jury correct instructions on the required mental state for the commission of each offense and on the effect of mental impairment upon the formation of any required mental state.   Except when modified or augmented at defendant's request or to emphasize applicability to both specific intent and mental state, these instructions were approved CALJIC instructions.   Moreover, since the trial court provided the written instructions to the jury for use in its deliberations, the record provides an added assurance that the trial court's description of the requisite mental state within the definition of each charged offense was sufficient.

Although the validity of these instructions is not conclusively established simply because they have never provoked any contrary judicial interpretation, there is nothing to suggest that the trial court's duty to give sua sponte instructions has been, or should be, expanded to require the trial court, absent any direction from the parties, to review approved CALJIC instructions in an attempt to determine on its own initiative where modifications are necessary to focus the attention of the jurors on the particular circumstances of the case being tried.

Obviously, a reviewing court is in a much better position to review any error in instructing the jury if it can look at a proposed modification offered by a defendant and rejected by the trial court.   When evaluated in light of the entire record, a reviewing court can not only assess the prejudice resulting from rejection of the modified or proposed instruction but can also, presumably, review defendant's rationale for requesting the modification as well as the trial court's reasoning in rejecting it.   Were the entire burden of modifying approved CALJIC instructions placed on the trial court dependent upon its perception of the case, it seems highly probable issues on appeal would surface as readily, if not more so, than they do in conjunction with the trial court's asserted sua sponte duty.

A trial court's sua sponte modification of approved CALJIC instructions may focus the jury's attention on evidence or theories which the defendant, from a tactical standpoint, would rather leave obscure.   On the other hand, a defendant who is truly persuaded that a weakness in the prosecution case can be exploited to his benefit by way of specially tailored jury instructions can easily tender such modifications to the trial court, thus ensuring that the jury will focus on the defendant's actual theory of the case rather than what the trial court supposes that theory to be.

 Similarly, defendant contends the jury was not given appropriate instructions as to the specific intent to kill necessary to sustain the special circumstance allegation.   However, as to the special circumstance, the jury was instructed:

“If you have a reasonable doubt as to whether a special circumstance is true, it is your duty to find that it is not true․  [¶]  To find that the special circumstance referred to in these instructions as murder in the commission of a robbery is true, it must be proved that the murder was committed while the Defendant was engaged in the commission of a robbery and that the Defendant intended to kill or to aid in killing the victim.”  (CALJIC Nos. 8.80 (4th ed. 1979) and 8.81.17 (1980 rev.) as modified by the trial court.)

As discussed above, in addition to the standard CALJIC instruction on mental illness, CALJIC No. 3.36 (1981 new), the jury was given an instruction (CALJIC No. 3.31 modified) that applied not only to the crimes, but also to the allegations charged in the information.   Under these circumstances, if defendant's particular theory of the case warranted further modification of these extensive CALJIC instructions, defendant was obligated to request such instruction.   Failure to do so precludes defendant from now asserting this alleged error on appeal.

We find no error in the trial court's failure to further modify, sua sponte, the jury instructions covering mental impairment, premeditation, deliberation, and the specific intent to kill.

 IV.–VI. ***

The judgment is affirmed.


1.   All statutory references are to the Penal Code unless otherwise noted.

2.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

3.   Since these statements will be covered in some detail in the discussion of defendant's challenge of their admissibility, they will not be related here.

FOOTNOTE.   See footnote *, ante.

4.   For purposes of clarity, we make two observations relative to the procedural posture of Williams v. Superior Court, supra, by which the defendant sought pretrial review of the trial court's denial of his motion to sever by way of writ of mandate.   First, the California Supreme Court “adopted intact [the Williams analysis] in its posttrial review of a severance ruling in People v. Balderas (1985) 41 Cal.3d 144, 170–178 [222 Cal.Rptr. 184, 711 P.2d 480]․”  (People v. Smallwood, supra, 42 Cal.3d at p. 710a, 228 Cal.Rptr. 913, 722 P.2d 197.)   Secondly, while generally the propriety of a trial court's ruling must be reviewed in light of the showing made to the trial court and the facts then known (People v. Balderas, supra, 41 Cal.3d at p. 171, 222 Cal.Rptr. 184, 711 P.2d 480), this standard, readily usable when the trial court's ruling is reviewed pretrial, results in unnecessary analytical duplication on an appeal when the court's focus has shifted from the potential for prejudice to actual prejudice which has deprived the defendant of a fair trial and resulted in a miscarriage of justice.  (Cal. Const., art. VI, § 13.)

FOOTNOTE.   See footnote *, ante.

HAMLIN, Associate Justice.

FRANSON, Acting P.J., and SCOTT, J.,* concur.