P. v. Takizawa 5/25/07 CA2/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B187374

Case Date: 08/09/2007

Preview:Filed 5/25/07 P. v. Takizawa CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, v. DEREK TAKIZAWA, Defendant and Appellant.

B187374 (Los Angeles County Super. Ct. No. BA241860)

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed. Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent. ______________________________________

Derek Takizawa appeals from the judgment entered following a jury trial in which he was convicted of voluntary manslaughter and found separately to have used both a hammer and a knife in the commission of the offense. He was also convicted of robbery. Defendant contends that the trial court prejudicially erred in instructing with CALJIC No. 2.28 (Failure to Timely Produce Evidence) and that he is entitled to a resentencing hearing as a result of the United States Supreme Court's opinion in Cunningham v. California (2007) ___U.S. ___ [127 S.Ct. 856] (Cunningham). We affirm. BACKGROUND Defendant was charged with special circumstances murder (committed while engaged in burglary, robbery, and lying in wait), burglary, and residential robbery. It was further alleged that defendant used a hammer and a knife in the commission of the offenses. Trial evidence established that defendant and Aaronn Wilson, both in their teens, were regular visitors to the Hollywood apartment of Chad Larson. A friend of Larson's described him as a "queen" whose relationships with men included sadomasochism and bondage. Defendant and Wilson sometimes did chores and modeled clothing that Larson designed in exchange for money, methamphetamine, and other drugs. Larson was last seen alive on January 3, 2003. On January 6, Larson's body was found in his apartment. Larson had died from blunt force trauma to the head and several deep stab wounds to the neck. Police investigation led to defendant, Wilson, and two girls, Amy Lugo and Aja Mohammed. In an interview with police detectives, Lugo stated that she and Mohammed had driven with defendant and Wilson to Larson's apartment. The boys said that they were going to rob and kill Larson while the girls waited in the car. Defendant had a hammer with which he said he would hit Larson. When defendant and Wilson returned to the car, they had a bag that contained jewelry. Defendant told Lugo that he had hit Larson in the head with a hammer and stabbed him in the neck with Wilson's knife. Defendant also said he had been molested as a child and that Larson was a child molester and rapist who had tried to force defendant to have sex. 2

Defendant later gave a statement to the police. He admitted that he had brought a hammer and a knife to the apartment, asserting that he and Wilson planned to attack Larson if Larson sexually assaulted them. Defendant further told officers that he and Wilson took jewelry from an open safe in the apartment and sold some of it. Testifying in his own defense at trial, defendant stated that Larson had wanted him to model for gay pornography. Defendant initially declined, but later changed his mind because he needed the money. Larson also supplied defendant with alcohol, methamphetamine, and other drugs. During one photo session, Larson gave defendant a drug which caused him to lose control of his body. Larson then raped defendant. Defendant returned to Larson's apartment on the night of the incident because Larson owed him money. Defendant took a hammer and a knife for protection. While there, defendant and Wilson smoked methamphetamine with Larson. Defendant, who was still angry with Larson for having raped him, lost control of himself when Larson put his hand on defendant's inner thigh. He then killed Larson by hitting him in the head with the hammer and stabbing him in the neck with the knife. Defendant next decided that the incident should be made to look like a robbery, and he and Wilson took jewelry and cash. The defense presented a police detective who had examined computers that were in Larson's apartment. The detective found, among other things, a video file depicting three males engaging in sex acts and a document entitled, "The Male-Male Rape Handbook." Psychiatrist Ronald Markman also testified for the defense. Dr. Markman diagnosed defendant as suffering from post-traumatic stress disorder (PTSD), caused by defendant having been molested when he was eight years old. Defendant had attempted suicide, engaged in self-mutilation, and was a heavy user of drugs, all of which could be related to his PTSD. Markman had also administered a Minnesota Multiphasic Personality Inventory (MMPI) examination to defendant, and it did not appear that defendant had tried to manipulate the examination. The prosecutor argued to the jury that defendant had committed first degree murder under theories of premeditation, lying in wait, and felony murder in conjunction 3

with burglary and robbery. He further urged that the jury should find true the special circumstances of murder committed during a burglary, a robbery, and by lying in wait, and find the weapon use allegations to be true. The prosecutor also argued for convictions of burglary and robbery. Defense counsel argued that the material found in Larson's apartment lent credibility to defendant's assertion that Larson had drugged and raped defendant. Counsel further noted Markman's testimony that defendant had not manipulated the MMPI. Counsel asked the jury to convict defendant of voluntary manslaughter as a lesser offense of murder based on heat of passion. He further argued that the jury should convict defendant of grand theft as a lesser offense of robbery based on the theory that defendant's intent to steal was formulated only after the homicide had been committed. Finally, counsel requested that defendant be acquitted of burglary. The jury received instructions and was provided with verdict forms on the theories argued by both sides. As noted above, defendant was convicted of voluntary manslaughter and robbery and found to have used deadly weapons. Defendant's sentence is discussed below. DISCUSSION 1. CALJIC No. 2.28 As Dr. Markman was about to testify for the defense, a discussion took place outside the presence of the jury in which it was established that although Markman had administered the MMPI during the course of his evaluation of defendant, neither the results of that exam nor any notes arising from the evaluation had been provided to the prosecution in discovery. The prosecutor requested the sanction of barring Markman from testifying on the ground that the failure of discovery had adversely affected the People's trial preparation. Defendant argued that he was not obligated to turn over the MMPI test results because Markman did not rely on the MMPI in concluding that defendant suffered from PTSD. Defendant further explained that the MMPI indicated defendant had a borderline personality disorder, which was irrelevant to the voluntary manslaughter defense. In addition, as part of the proceedings on the sanctions issue, 4

Markman testified that he had made the PTSD diagnosis before administering the MMPI, but that the MMPI "does support that diagnosis." The court ruled that Markman could testify and that the jury would be instructed that information about the MMPI had not been produced by the defense in a timely manner.1 Defendant contends that, with respect to his conviction of robbery, the instruction constituted prejudicial error. We disagree. Penal Code section 1054.3, subdivision (a), requires a defendant to disclose "[t]he names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports of statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at trial."
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The jury was instructed pursuant to CALJIC No. 2.28 as follows: "The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. Delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the noncomplying party's evidence. "Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the defense failed to timely disclose the following evidence: that Dr. Markman had administered the MMPI test to the defendant and the results of that test, and Dr. Markman's notes of his contacts with the defendant. "Although the defense's failure to timely disclose evidence was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial. "The weight and significance of any delayed disclosures are matters for your consideration. However, you should consider whether the untimely disclosed evidence pertains to a fact of importance, something trivial or subject matters already established by other credible evidence."

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In support of his argument, defendant relies primarily on the distinction between this case and Woods v. Superior Court (1994) 25 Cal.App.4th 178. In the latter, disclosure was required of standardized tests administered by a defense psychologist that were relied on in forming an opinion regarding the defendant. (Id. at p. 181.) But the discussion in Woods, which was decided a few years after Proposition 115 established reciprocal discovery obligations for criminal defendants, was not focused on whether the reports had been relied upon. Rather, Woods concluded that Proposition 115 did not exempt words spoken or written by a defendant, nor did it violate a defendant's constitutional rights. (25 Cal.App.4th at pp. 184

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