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Name: People v. Mercado
Case #: B223451
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 05/07/2013
Summary

Crawford did not bar expert from expressing opinion based on facts learned from investigator, about which the expert was not qualified to testify. Defendant was convicted of second degree murder, attempted murder, and enhancements after she hit a woman who was eight months pregnant with her car, killing the fetus. This decision follows a remand from the United States Supreme Court to reconsider the opinion in light of Williams v. Illinois (2012) 132 S.Ct. 2221. Here, appellant claimed her confrontation clause rights were violated when the medical examiner testified the fetus’ death was a homicide based on facts obtained from an investigator. Held: Affirmed. The extrajudicial statements relied upon by the medical examiner were not testimonial under Crawford because they lacked the requisite formality and solemnity discussed in Williams and criminal investigation was not the primary purpose of the statements (People v. Dungo (2012) 55 Cal.4th 608). In any event, even if there was Crawford error, it was harmless.

Court’s response to jury question regarding voluntary manslaughter was not error. During deliberations, the jury asked whether all three criteria outlined in CALCRIM No. 570 (voluntary manslaughter) and CALCRIM No. 520 (murder) had to be “met.” The court responded “yes.” Defendant claimed it was error to tell the jury the element of passion/quarrel had to be “met” to return a voluntary manslaughter verdict and to treat these elements as analogous to the elements of murder when, in fact, the prosecution is required to disprove passion/quarrel to show malice. There was no error in light of the record and all the instructions given.

Trial counsel was not ineffective for failing to obtain a psychological report in time for trial. After defendant was convicted, her attorney obtained a written report from a psychologist who had been consulted prior to trial. It detailed defendant’s prolonged exposure to abuse, which might have affected her ability to control her impulses. Trial counsel filed a new trial motion based on his ineffective assistance in not obtaining and using the report to support defendant’s heat-of-passion defense, which was denied. On appeal, the court rejected defendant’s ineffective assistance of counsel claim. The heat of passion requirement for manslaughter has both objective and subjective components. The objective component requires that the passion be that which would be aroused in the mind of a reasonable person under the circumstances of the offense; a defendant may not set up her own standard of conduct. Here, there was already evidence of the subjective component without the kind of testimony the psychologist would have provided, i.e., defendant killed in a jealous rage. The objective component, however, was missing from defendant’s defense. Because the psychologist’s testimony would have been irrelevant to the objective component, there is no reasonable probability that the evidence would have made any difference in the result.