Opinion
G050684
08-05-2015
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN MARVIN BONADIE, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FWV900303) OPINION Appeal from a judgment of the Superior Court of San Bernardino County, Jon D. Ferguson, Judge. Reversed. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Adrian Marvin Bonadie of two counts of second degree murder for slaying his parents (Pen. Code, § 187, subd. (a); all further statutory references are to this code), three counts of attempted murder of a peace officer (§§ 664, subd. (e); 187, subd. (a)), and possession of a firearm by a felon (§ 12021, subd. (a)(1). The jury found penalty enhancement allegations true on the murder and attempted murder counts that defendant personally used and personally and intentionally discharged a firearm (§ 12022.53, subds. (b), (c)), and on the murder counts that defendant personally discharged a firearm proximately causing great bodily injury or death (§ 12022.53, subd. (d)). In a bifurcated proceeding, the trial court found true the allegation that defendant had a prior conviction for robbery within the meaning of the Three Strikes law. (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d).)
During the sanity phase of defendant's trial, the same jury found defendant was insane (not guilty by reason of insanity, or NGI) when he killed his parents, and sane when he committed the attempted murders. At the sentencing hearing, the parties stipulated and the trial court found defendant's sanity had not been restored. The trial court ordered defendant confined in a state mental health facility until his sanity was restored (§ 1026), and fixed his maximum commitment term on the NGI murder counts at 110 years to life. On the remaining counts, the trial court imposed a consecutive, aggregate term of 102 years to life.
Defendant challenges the sufficiency of the evidence to support his conviction for attempted murder of one of the peace officers, and he contends the trial court erred in failing sua sponte to instruct the jury on involuntary manslaughter as a lesser included offense of murder. Defendant also argues the prosecutor misstated the law in the guilt phase of the trial by suggesting repeatedly that the jury could consider evidence of his delusional mental state only in determining whether he committed premeditated and deliberate first degree murder and not in assessing whether he had the requisite mental state to commit second degree murder of his parents or attempted murder of the police officers, all of whom he believed were demons. Defendant complains his trial attorney failed to object to correct the prosecutor's misstatement of law and indeed appeared to share the prosecutor's misconception, and the trial court's instructions similarly were susceptible to this misinterpretation, so the jury did not have an accurate picture of governing law when it convicted him.
Defendant raises other claims of prosecutorial misconduct in the sanity phase and also asserts several sentencing challenges, including that the trial court failed to understand it had discretion to impose a concurrent sentence on his attempted murder and firearm convictions instead of consecutively with his NGI commitment on the murder counts.
As we explain, the prosecutor's misstatements that the jury could not consider defendant's delusions in determining whether defendant had the mens rea necessary for second degree murder and attempted murder require reversal. Neither the trial court nor defense counsel corrected the misstatements, and the jury could not independently determine the correct law from the trial court's instructions, which were susceptible to the misinterpretation the prosecutor advocated. We therefore reverse the judgment. Consequently, defendant's other contentions are moot in light of the necessity of retrial.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shootings
In the months leading up to February 6, 2009, defendant's family noticed his mental condition deteriorated drastically. His brother Marlon explained that while defendant had never been violent with a family member, defendant began to "disassociate" and act "paranoid" about six or seven months before the shootings. Defendant told Marlon about "seeing things" and "strange occurrences," including that "sometimes he would be walking in the living room, and it would feel like somebody was underneath the house using some kind of gravity force to keep him from being able to move around the room." Defendant complained "about things being in his room" and about "seeing" things, including "giants outside of the house."
Because many of defendant's family members share his last name, we use their first names for clarity and intend no disrespect.
In late November 2008, the family took defendant to the San Bernardino County Department of Behavioral Health, where doctors prescribed antipsychotic medications, but did not hospitalize defendant. A caseworker informed Marlon, "Your brother is totally psychotic right now." Defendant took his medication only once, describing it as "poison" because of the way it made him feel.
Defendant became increasingly withdrawn. Marlon sometimes saw him expressionless, "staring off into space like he was looking at something." Defendant complained a helicopter followed him and he believed he was in danger. A short time before the shootings, Marlon found his brother "burning candles in his room and holding [them] up to the ceiling because he was hearing things and hearing movement in the ceiling and underneath the house." The family owned guns, but kept them stored in a locked closet and planned to move them out of the house.
A neighbor, Kenyatta Andrews, saw defendant outside his home the day before the shootings, running up and down the street as if someone were chasing him. He would run, stop, resume running, and then run back again, looking frightened.
Early on the morning of the shootings, February 6, 2009, defendant appeared as promised at his sister Andrea Cox's home to help her and her children after she suffered an injury. She previously had noticed his strange behavior, and her mother had called on an earlier occasion to say defendant did not recognize her as his mother. But that day, while defendant was dressed somewhat oddly, he otherwise acted normally and left after 20 minutes. Andrea thought he was going to the unemployment office.
Sometime that morning, defendant spoke by telephone with another sister, Chenelle Nelson. Defendant was at home with his parents. He whispered to his sister during their conversation, and sometimes fell silent. He seemed to be hallucinating about their parents, saying he was seeing things that could not possibly be real. At times he did not believe Chenelle was his sister and thought he was someone other than himself. He selected a biblical passage and asked Chenelle repeatedly to pray by reciting the text. To Chenelle, defendant sounded "tormented."
A third sister, Heidi Bonadie, received a call around 8:15 a.m. from their mother, Angela Bonadie. Angela asked Heidi to pray for defendant because he was "struggling with his mental health issues."
Around 8:45 a.m., Angela called Bryant Vaughns, a longtime family friend whom all, including defendant, regarded as a member of the family. Bryant and Angela discussed removing the guns from the home and the possibility of taking defendant to the mental health medical center again. Defendant returned home at some point during the telephone call, and Bryant overheard Angela say to defendant, "Marv, do you want to talk to Mommy, Honey?" Bryant heard defendant say he was going to use the bathroom, but a few seconds later, Bryant heard Angela's husband, Earl Bonadie, exclaim, "Hey. Hey, man," followed by what sounded like gunshots. After that, no one responded to Bryant, and his calls to Angela's and Earl's cell phones went unanswered. Bryant drove to the residence, and when he saw both defendant's and his parents' cars in the driveway, he called the police.
Heidi had also called 911 to request a safety check on defendant and her parents. Officers Ashlee Westall, Gloria Mireles, and Shannon Juarez from the Montclair Police Department arrived in marked patrol vehicles around 10 a.m., shortly after Bryant called.
Officer Westall approached the front door with Officer Mireles positioned near her but behind her to one side, west of the front door, while Officer Juarez remained back and to the other side (east) by the garage and driveway, where she could see the front of the house. When Westall knocked and defendant asked who it was, she responded, "Police department" or "Montclair Police Department." Westall and Mireles heard a faint sound like the racking of a shotgun, so they started to move away from the door towards the west. As Westall cleared a side window by the front door, she tapped the glass with her flashlight and immediately five or six nine-millimeter rounds burst through the window. Cut on her face and hands by the flying glass, Westall returned two rounds of fire and retreated behind a retaining wall in the yard. Officer Mireles also fired a round at the residence and took cover by the retaining wall.
Meanwhile, defendant had moved eastward into the living room, where he took a position and fired four shots at Officer Juarez where she had retreated by a car in the driveway. The bullets just missed her, shattering the car's window. The officers summoned a SWAT team.
Heidi, Bryant, a family friend named Chrashawn Jackson, and a police officer were each able to reach defendant by phone during the ensuing standoff. Pleading with defendant, "What's going on?" Heidi told him, "We can't get to the house. It's surrounded by police." He told her to "call the media," and when she asked about their parents, he responded, "[T]hey are in heaven." Speaking with Bryant, defendant confirmed, "Mom and Dad are in heaven," and he accused Bryant of trying to hurt or sabotage him. He demanded, "B, how could you do that? How could you do that to me? How could you put voodoo in my food?" Defendant seemed to converse coherently at times, and at other times maintained he was not actually part of the family, but rather a Muslim by the name of Alfar Kadafi. He denied he had two sons.
When Jackson spoke to defendant, he was "in a manic state. He was crying. . . . He was changing voices. He would put the phone down. I could hear prayers in the background and moaning." To Jackson, "It sounded as though it was a manic crazed state. The voice, I never heard before. At some point, I didn't even know if it was [defendant]. He didn't respond to the name when I kept saying 'Marvin.'" Jackson explained, "I told him that he had shot at a cop or cops. He — initially, I kept having to repeat myself. No, they were cops, because based on his response, I just kept having to repeat myself. 'No. No, Marv. Those were cops. They're not there to hurt you. They're not demons. [¶] If you want the demons to leave you alone, you've got to let somebody come in and help you. We can get the demons off your back — because he kept — it sounded like he was scratching at something. I said, 'If you want the demons off your back, if you don't want them to get you, you have to let us come in.'"
Using a family member's phone, Officer Elizabeth Jolin also spoke to defendant, who was distraught and crying. He told Jolin, "I don't trust you guys. I want the media there." He also asked, "Is the lady officer okay? Is she alive?" When Jolie responded that "she was able to walk away and . . . she was really upset," defendant asked how badly she was hurt or injured. At other points in the conversation, he complained he had a "a microchip in his head" and "[t]hat it was a mark of a beast." Jolin ended the call when defendant asked to speak to a family member.
Defendant remained in the home for several hours before he emerged through the front door in the early afternoon. He wore an orange "do-rag" on top of his head and a blue bandana around his neck, partially covering his face. He also had a nine-millimeter handgun in each hand, pointed towards the ground. The SWAT officers ordered him to drop the guns and to get down. For a tense interval, defendant scanned the scene, looking at the helicopter hovering overhead and peering at the officers' faces. Finally, he complied, and the officers took him into custody.
They found two folding knives clipped to his belt, four shotgun shells in a back pocket, and 14 rounds of ammunition in his other pockets. When asked if anyone in the home needed medical attention, he responded, "You're going to have to go in and check for yourself." Asked if he needed medical attention or any aid for himself, he answered, "After this, I'm going to need a shower and a priest." As he was transported from the scene to a medical center, he asked a policeman in the ambulance, "Are your officers all right?" When the officer responded, "Thank God everybody is okay," defendant agreed, "Yes, thank God."
Inside the home, the police found the bodies of defendant's parents. Earl had been shot twice in the chest, once in the left side of his head, and six times in the back. Angela had been shot once in the chest, once in her neck, once above her hip, and once in the back of her head. All the wounds were caused by nine-millimeter bullets. The officers collected 10 additional firearms inside the house, including a shotgun, five rifles, and four handguns. Many of the guns had been piled on defendant's bed. Officers also collected 26 expended rounds of nine-millimeter ammunition and a large quantity of live ammunition scattered on the floor throughout the residence.
A file cabinet had been moved so that it partially blocked the entrance to the victims' bedroom. The victims' bodies were in the living room and laundry room. Defendant had leaned his bed mattress against the window in his room. He had plugged the kitchen and bathroom sinks and left the faucets running. The home was flooded with a large pool of water after the sinks overflowed.
Booked at the West Valley Detention Center, defendant gave appropriate answers to booking questions. He expressed enthusiasm about the standard blood draw procedure because he wanted to make clear he was not crazy or under the influence of drugs or alcohol. When the nurse asked if he were being treated for any psychiatric conditions, he responded, "Nah, I'm not crazy." B. Guilt Phase
1. Witness Testimony
The bifurcated trial included a guilt phase followed by a sanity phase. At the guilt phase, defendant's friends, neighbors, and family members detailed his strange mental state and behavior in the weeks and months leading up to the shootings. He sometimes peeked over fences, walked in the rain while wearing sunglasses, and patrolled the area around his home while carrying a bible and a gun. He wore his sunglasses at the dinner table and would not eat food prepared for him. On at least one occasion he was convinced helicopters were following his car. He also complained he was under surveillance by people sitting in cars parked outside the house. Other witnesses had noticed nothing odd about defendant.
As noted, Jackson spoke with defendant on the telephone during the incident and also visited defendant the day after the shootings. During the incident, she felt like she "was talking to a different person" because defendant "kept going in and out of these different voices." Jackson summarized the disturbing experience: "The best I can describe it is it's almost like when you see a movie, and you hear a person who's possessed, their voice changes. That's how he sounded." The next day during her visit, defendant still sounded both "manic" and "[v]ery distressed," and he did not "look like himself," but instead kept praying, chanting, and referring to Jackson by a different name. Jackson felt compelled to prove "that it was me" talking to defendant, while his eyes were glazed and darting around the room and he held his body "paranoid and tense."
Three doctors testified concerning defendant's mental condition. Dr. Marjorie Graham-Howard, a psychologist, interviewed defendant in March 2009, shortly after the shootings. She testified, "I assessed Mr. Bonadie as being one of the most ill individuals I had evaluated in quite some time. And why I say that is the severity of his symptoms, the level of paranoia that he had that [he] expressed repeatedly, the number of delusions that he expressed. He said many things to me that were very bizarre and nonsensical." She classified defendant's mental condition as "severely psychotic," based on his paranoia, disorganized speech and thought, and delusional beliefs, including a somatic delusion that his brain was burning. He displayed poor insight and failed to grasp he was ill, itself a measure of the severity of his condition. Having reviewed his medical history in light of her clinical assessment, she concluded defendant was suffering from a mental condition at the time of the shootings that affected his perception of reality, rendering him delusional.
Dr. Robert Suiter, a court-appointed forensic psychologist, interviewed defendant two years later in March 2011 and testified at the January 2012 trial. He diagnosed defendant as schizophrenic, paranoid type, and after reviewing his history and reports of the fatal shootings, he opined that Martin suffered a mental disorder at the time and his delusions and hallucinations affected his actions.
Dr. Dennis Walstrom, a psychologist, also interviewed defendant in March 2011, and similarly concluded he suffered from schizophrenia, paranoid type. Walstrom testified he believed defendant suffered at the time of the shootings from Capgras Syndrome, which manifests itself in "psychotic disorders such as schizophrenia where the belief essentially is that someone who is close to the person, a loved one, has been replaced, that the loved one is no longer present but that someone — could be some evil force or some alien force — is substituting for the loved one." Walstrom explained that a person suffering from a severe psychosis could misperceive the nature of events occurring around him and misinterpret the actions of others.
2. Prosecutor's Argument Limiting Delusions to Issue of Premeditation
In closing argument in the guilt phase, the prosecutor told the jury defendant's hallucinations, if any, were only relevant to the first degree murder charges on counts 1 and 2 involving his parents, based on the prosecutor's interpretation of CALCRIM No. 627.
The prosecutor told the jury: "Okay. There's a jury instruction that you might have noticed. It's called Hallucination Effect on Premeditation. A hallucination is a perception not based on objective reality. The jury instruction tells you, 'You may consider evidence of hallucination, if any, in deciding whether Defendant acted with deliberation and premeditation.' [¶] If you decide that he did not act with deliberation and premeditation because of a hallucination, the only thing it does is make him not guilty of first degree murder. So if hallucinations have anything to do with it, then that would only affect a verdict of first degree. He may still be found guilty of second degree murder because premeditation and deliberation only exists in first degree." (Italics added.)
The prosecutor explained, "So first degree murder is with express[] malice with intent to kill, premeditation, and deliberation. Second degree murder doesn't require premeditation and deliberation. So the hallucination thing would not have any effect on second degree murder. I just told you that. It only negates first degree murder. [¶] Okay. So did he? You know that's the elephant in the room. Did the defendant hallucinate so as to entitle him to be convicted of second degree as opposed to first degree?" (Italics and bold added.)
Defense counsel appeared to share the prosecutor's view the hallucinations were not relevant to determining whether defendant's mens rea included the malice necessary to constitute second degree murder in slaying his parents (counts 1 & 2) or attempted murder in shooting at the police officers (counts 3-5). Defense counsel noted simply in closing argument, "You get to apply the hallucinations to the first and second count," apparently referring to the first degree murder allegations attached to those counts.
After defense counsel concluded her closing argument, the prosecutor in her rebuttal again stressed the limited relevance of the hallucination evidence. She emphasized, "Okay. Hallucination. Let's talk about it again. Perception not based on objective reality, it only applies to deliberation and premeditation. If he acted under the hallucinations, all it does is reduce the first degree. He could still be found guilty of second degree. So don't get confused. We're not in the sanity phase. This is not the sanity phase. [¶] The sanity phase is a whole different phase. We're not talking about that. We're talking about did he do it? And the only thing that hallucinations, delusions, or any of that stuff would do is knock out first." (Italics and bold added.)
The jury convicted defendant in the guilt phase of second degree murder of his parents and attempted murder of the three officers, as noted at the outset. C. Sanity Phase
1. Defense Witness Testimony
In the trial's sanity phase, several of the mental health experts and lay witnesses again testified, and an additional court-appointed expert, psychiatrist Mendel Feldsher, also testified. The witnesses from the guilt phase restated much of their testimony based on the legal standard for insanity, i.e., the M'Naghten test reinstated by Proposition 8. Specifically, "'"[T]o establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature or quality of the act, or if he did know it, that he did not know he was doing what was wrong."' (Original italics.)" (People v. Skinner (1985) 39 Cal.3d 765, 772 [upholding Proposition 8's reinstatement of the M'Naghten test].)
Dr. Suiter opined that defendant "was suffering from a severe mental disorder and was not able to appreciate the wrongfulness of his actions that day." He explained that defendant believed the two people he shot inside the home were not his parents, nor were they human, but instead were supernatural demons that looked like his parents. His real parents had been "removed from the home and were being kept against their will at some unknown location." According to Suiter, defendant suffered from a delusional belief the two demons were trying to poison him and he acted in response to kill the demons so his true parents would be freed and return to the house. Once he killed the demons, he continued waiting inside the house for his real parents to return.
Similarly, Suiter explained defendant thought the police were "shadowed demons"; however, he had no recollection of discharging a gun after killing his parents, neither towards a police officer nor anywhere else outside the house. Suiter explained defendant's delusions were "ongoing in terms of his perceptions of demons and [his belief that] the demons [were] trying to harm him . . . extended to the police." But according to Suiter, later in the standoff, despite "some generalized fear" of the SWAT officers, the delusions somehow subsided or defendant "let go" of them, though they later resurfaced.
Bryant described defendant as "Tormented," "Erratic," and "highly abnormal" on the day of the shooting, failing to "recognize that he had a family." Heidi echoed that defendant "didn't sound like my brother. . . . He was not coherent, and he was extremely afraid. His voice changed. He wasn't sure who I was." She believed he had "decompensated mentally." Chrashawn Jackson added that defendant thought the police were demons, but she explained to him in their telephone conversation, "They're not there to hurt you. They're not demons."
Dr. Wallstrom opined that at the time of the shootings defendant was in the "active phase of paranoid schizophrenia," marked by "a clear break from reality" in which "the symptoms are very obvious and evident, and the person is in deep distress from them." As a result, Wallstrom concluded, "I don't believe that he knew the nature and quality of his actions or their wrongfulness."
Wallstrom explained more specifically in a colloquy with defense counsel: "[Q]: And did you find that Mr. Bonadie was able to determine a difference [between right and wrong]. [¶] . . . [¶] [A]: Well, yes, he was able to determine right and wrong. He believed his actions were right. [¶] [Q]: And his actions [of] killing the demons were correct? [¶] [A]: Yes, I asked him specifically about that, what do you think about what you did? What did you think about at the time. He believed that he was killing demons, and this would be a way to get his real parents back. And he said that he thought that he would be considered a hero for his actions. [¶] [Q]: For bringing his parents back? [¶] [A]: And for killing the demons. That his actions — he considered them heroic. [¶] [Q]: Now — now, do you — would you say — is it fair to say that he appreciated the wrongfulness of his actions in regards to this? [¶] [A]: He did not appreciate the wrongfulness as you and I and most people would in a situation like that. [¶] [Q]: So it could be because it was based on the delusion he was suffering from? [¶] [A]: Yes. . . . So the reality that Mr. Bonadie was living in, we would consider highly delusional. But within that reality, his actions were right."
Wallston similarly explained that "even the police, when the police arrived, [defendant] thought they were shadows that were a demonic presence coming to get him." Wallstrom acknowledged that while defendant continued to maintain his deluded view he had shot demons instead of his parents, soon after the incident he had "given up" his delusion the police officers were demonic. Wallstrom attributed the disparity to "the inconsistency that psychosis and delusions can have in the same person. A person is grasping to try [to] get ahold of reality. They don't always maintain a consistent position."
2. Dr. Feldsher's "Bifurcated" Testimony
Only Dr. Feldsher expressed the view that defendant may have regained his sanity by the time he shot at the police officers. Feldsher agreed defendant was not in touch with the nature or quality of his actions in slaying his parents, and that defendant did not understand the killings were wrong. Feldsher explained defendant believed "that his parents had been replaced by demons or clones and that those clones were poisoning him." Consequently, defendant did not grasp that his actions were wrong, nor did he understand the true nature and deadly consequences of discharging a firearm at his parents.
Feldsher's view was more nuanced, or in his words "bifurcated," concerning the police officers. Feldsher testified defendant told him he thought the police were demons coming to retaliate against him, but at another point in the interview, defendant explained that "he didn't know who it was and that he didn't know what they were going to do to him." Feldsher's "bifurcated" view of defendant's sanity when he shot at the police officers turned on whether the jury believed Chrashawn Jackson's testimony that based on her telephone conversation with defendant during the standoff, defendant believed the officers were demons. Feldsher explained that "if the jury were to conclude that the information that was provided to me from the December 21, 2011, interview with Ms. Jackson — if that's accepted as true, then I would conclude that [defendant] met the NGI standard for shooting at the officers."
Feldsher earlier had testified the remorse about shooting the officers that defendant expressed upon being taken into custody and his concern for the officers' well-being was inconsistent with a delusional state. Feldsher expressed some doubt a person would so quickly change from a delusional mindset believing the officers were demons to a nondelusional state of contrition, but he acknowledged it was possible. He therefore highlighted the importance of Jackson's contemporaneous telephone conversation with defendant that, if credible, "would trump the remorse piece" as "powerful evidence that he didn't know the wrongfulness" of his actions because he believed the officers were demons.
3. Prosecution Evidence in the Sanity Phase
The prosecution presented the testimony of only two witnesses during the sanity phase. Defendant's employer from October 2006 through July 2008 testified that defendant interacted appropriately with other workers, but was terminated in July 2008 for absenteeism and leaving his workstation.
Sergeant Brandon Kumanski interviewed defendant around 5:30 p.m. the day of the shootings, and the jury viewed a videotape of the interview. Defendant stated during the interview that he had "no history" and claimed that because of an absence of childhood photographs of himself, "I basically don't exist to a point." He expressed suspicion of supposed family members who were practicing "witchcraft" by wiping "oils on the walls that make you ill." He explained, "Like I said, what I know to be my [real] family doesn't practice in any witchcraft or wiping any[] oils on the walls that make you ill, and that type of stuff." Rather, his real family was "very supportive," but "today I was looking for my family earlier today [and] I couldn't find anybody. And the the the [sic] one house I did go to. You know — said I'll talk to you later."
II
DISCUSSION
Defendant contends an ill-fated combination of (1) ambiguity in the trial court's mental disorder instructions, (2) the prosecutor's misleading arguments exploiting the ambiguity, and (3) defense counsel's failure to object to the prosecutor's argument or to request clarifying instructions require reversal because these factors created a strong likelihood the jury misunderstood and misapplied the law. Specifically, defendant argues the instructions, the prosecutor's argument, and defense counsel's silence together told the jury erroneously to consider evidence of his mental disease, defect, or disorder only in determining whether he premeditated and deliberated killing his parents as charged in counts 1 and 2. In other words, these factors combined to direct the jury to ignore the mental disease, defect, and disorder evidence both in determining on counts 1 and 2 whether he harbored the malice aforethought necessary for second degree murder as a lesser included offense and in weighing on counts 3, 4, and 5 whether he had the requisite specific intent for attempted murder of the peace officers. As we explain, we agree reversal is required.
"Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law." (Carter v. Kentucky (1981) 450 U.S. 288, 302.) Reversal is required where there is a "reasonable likelihood that the jury misapplied or misconstrued" the trial court's instructions or the underlying law. (People v. Crew (2003) 31 Cal.4th 822, 848.) The toxic combination of potentially ambiguous instructions and misleading arguments by the prosecutor requires reversal when it is likely the jury was misled. (People v. Edelbacher (1989) 47 Cal.3d 983, 1035-1040 (Edelbacher); People v. Roder (1983) 33 Cal.3d 491, 503-504 & fn. 13.)
Here, as defendant concedes, CALCRIM No. 3428 accurately told the jury a mental disorder could negate the mental state or specific intent applicable to defendant's charged offenses. But as the Supreme Court has observed, "[T]he interplay of argument with individually proper instructions" can "produce[] a distorted meaning." (People v. Brown (1988) 45 Cal.3d 1247, 1256.)
The trial court properly instructed the jury with CALCRIM No. 3428 as follows: "You have heard evidence that the defendant may have suffered from a mental disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, allegation, or any lesser offense, the defendant acted with the intent or mental state required for that crime or allegation. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state. The required intent or mental state is defined in Instruction numbers 520 [First or Second Degree Murder with Malice Aforethought], 521 [First Degree Murder], 571 [Voluntary Manslaughter: Imperfect Self-Defense], 600 [Attempted Murder], 602 [Attempted Murder: Peace Officer], and 2511 [Prohibited Firearm Possession by a Felon]; which are part of your packet of instructions. If the People have not met this burden, you must find the defendant not guilty of the crimes or allegation."
According to defendant, the potential for mischief or misdirection arose when the trial court instructed the jury with CALCRIM No. 627 in addition to CALCRIM No. 3428. CALCRIM No. 627 similarly instructed the jury accurately and more specifically on the effect of a defendant's hallucinations on the issue of premeditation. But the prosecutor exploited the instruction's specificity to suggest that a defendant's hallucinations or delusions are relevant only to determining whether the person committed premeditated and deliberate first degree murder, and not to assessing whether he or she harbored the requisite mental state for other offenses. The instruction provided: "A hallucination is a perception not based on objective reality. In other words, a person has a hallucination when that person believes that he or she is seeing or hearing or otherwise perceiving something that is not actually present or happening. [¶] You may consider evidence of hallucinations, if any, in deciding whether the defendant acted with deliberation and premeditation. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with deliberation and premeditation. If the People have not met this burden, you must find the defendant not guilty of first degree murder." (Italics added.)
The prosecutor seized on the specificity of CALCRIM No. 627 to argue that "the only thing" defendant's misperceptions of reality could do, if they were genuine, "is make him not guilty of first degree murder." The prosecutor dwelled on this claim repeatedly, stating several times: "So if hallucinations have anything to do with it, then that would only affect a verdict of first degree," the "hallucination thing would not have any effect on second degree murder. I just told you that. It only negates first degree murder," "Perception not based on objective reality, it only applies to deliberation and premeditation. If he acted under the hallucinations, all it does is reduce the first degree," "[a]nd the only thing that hallucinations, delusions, or any of that stuff would do is knock out first." (Italics and bold added.)
As defendant points out, the specificity in CALCRIM No. 627 regarding the effect of hallucinations on premeditation played into the prosecutor's argument. We agree with defendant that based on the prosecutor's statements and "[i]n view of the fact that the instruction specifically states how evidence of hallucinations may be used, [while] the instruction on mental impairment is very general and does not mention hallucinations (CALCRIM No. 3428), it is likely the jury viewed CALCRIM No. 627 as providing the exclusive manner in which evidence of hallucinations could be used."
We also agree with defendant that the prosecutor misstated the law. The prosecutor is duty bound to state the law accurately during argument to the jury. (People v. Huggins (2006) 38 Cal.4th 175, 253, fn. 21; People v. Otero (2012) 210 Cal.App.4th 865, 870.) Defendant does not suggest the prosecutor intentionally misstated the law, but a prosecutor's lack of bad faith or wrongful intent is not dispositive. (People v. Price (1991) 1 Cal.4th 324, 447.) "What is crucial to a claim of prosecutorial misconduct is not good faith vel non of the prosecutor, but potential injury to the defendant. (People v. Benson (1990) 52 Cal.3d 754, 793; see People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [observing that "prosecutorial 'misconduct' is somewhat of a misnomer . . . . A more apt description of the transgression is prosecutorial error"].)
The Attorney General suggests we need not reach or consider the prosecutor's alleged misstatements because defendant forfeited his challenge on appeal by failing to object below. Defendant contends forfeiture does not apply because he received ineffective assistance of counsel given his trial attorney's failure to object, and we agree. There is no conceivable tactical reason for counsel's failure to object (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266); to the contrary, it appears she simply held the same misconception the prosecutor advocated. We cannot say the jury would have rejected defendants' defense if trial counsel had objected and given the court the opportunity to correct the prosecutor's misstatement of law. (Strickland v. Washington (1984) 466 U.S. 668, 684-687.)
Moreover, it is the trial court's responsibility to ensure the jury is correctly instructed on the governing law, including the essential elements the prosecutor must prove and defenses supported by the evidence. (People v. Hagen (1998) 19 Cal.4th 652, 660; People v. Wickersham (1982) 32 Cal.3d 307, 323.) If defense counsel had objected or rebutted the prosecutor's incorrect explanation with a "model . . . accurate in its essential features," absent an admonition or clarifying instruction by the trial court, we would "have no way of knowing which model the jurors adopted" in reaching its verdict. (Edelbacher, supra, 47 Cal.3d at p. 1040.) In other words, because the trial court's instructions were susceptible to the misinterpretation that the prosecutor urged and that defense counsel and the trial court apparently shared, it is likely the jury also misunderstood the law.
Here, the prosecutor repeatedly misstated the law by telling the jury that evidence of defendant's delusional mental state was relevant "only" to the first degree murder charge, specifically whether he premeditated and deliberated killing his parents as charged in counts 1 and 2. But the Legislature has expressly provided in section 28, subdivision (a), that "[e]vidence of mental disease, mental defect, or mental disorder" is admissible not only "on the issue of whether or not the accused actually . . . premeditated [or] deliberated" in committing an offense, but also whether the accused "harbored malice aforethought" or "formed a required specific intent" to commit a charged crime.
Malice aforethought is precisely the mental state necessary for second degree murder — the alternative to first degree murder that defendant faced on counts 1 and 2. (See, e.g., People v. Gonzalez (2012) 54 Cal.4th 643, 653 (Gonzalez) ["conviction for murder [of either degree] requires . . . the mental state of malice aforethought"].) But the prosecutor erroneously told the jury defendant's delusions could "only . . . make him not guilty of first degree murder," but "would not have any effect on second degree murder." The prosecutor consistently repeated her erroneous claim that "if hallucinations have anything to do with it, then that would only affect a verdict of first degree" based on a lack of premeditation and deliberation, contrary to the Legislature's command in section 28.
The prosecutor's misstatements similarly erroneously directed the jury not to consider evidence of defendant's delusions on the attempted murder offenses charged in counts 3 through 5 concerning the peace officers. To support an attempted murder conviction, the prosecution must prove the defendant acted with specific intent to kill the particular victim (People v. Bland (2002) 28 Cal.4th 313, 331), a mental state essentially "one and the same" as express malice. (People v. Saille (1991) 54 Cal.3d 1103, 1114 (Saille).) But while, as noted, section 28 specifies that evidence of the defendant's mental disease, defect, or disorder is relevant to ascertaining his or her "specific intent," including malice, the prosecutor instead told the jury the evidence was relevant only to premeditation and deliberation. In discussing how to apply the instruction, the prosecutor told the jury: "If he acted under the hallucinations, all it [CALCRIM No. 627] does is reduce the first degree" and "the only thing that hallucinations, delusions, or any of that stuff would do is knock out first [degree murder]."
The prosecutor's statements misled the jury with a half-truth. The prosecutor was only partly correct in explaining the legal principles governing defendant's alleged mental disease, defect, or disorder. The prosecutor accurately explained, as noted in a leading treatise, that under California law "[a] defendant charged with first degree murder may offer evidence of . . . [an] abnormal mental condition that tends to negate premeditation, and thereby to reduce the crime to second degree murder." (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, § 107, p. 899 (hereafter Witkin).)
But the prosecutor's statements were incomplete and misleading because it is also true that a defendant's mental disease, defect, or disorder may negate not only premeditation, but also malice and the requisite intent to commit a specific intent crime. (§ 28, subd. (a) [defendant's mental condition is admissible "on the issue of whether or not the accused actually formed a required specific intent, [or] premeditated, deliberated, or harbored malice aforethought"].) Thus, as Witkin observes, just as a defendant may introduce evidence of his or her mental condition to negate the premeditation necessary for first degree murder, "[a] defendant charged with second degree murder may do the same; only here, the evidence is offered to negative the element of malice aforethought and thereby to reduce the crime to manslaughter." (1 Witkin, supra, at p. 899.) Similarly, a defendant is "free to show that, because of mental illness . . . , the required intent to kill was not in fact formed." (Id., § 126(e), p. 924; citing Saille, supra, 54 Cal.3d at pp. 1116-1117.) Consequently, the prosecutor misstated the law by repeatedly insisting that "the only" potential relevance of defendant's "hallucinations, delusions, or any of that stuff" was to "reduce the first degree" murder charge.
The Attorney General contends the prosecutor accurately stated the law, relying on People v. Padilla (2002) 103 Cal.App.4th 675 (Padilla). The portion of Padilla on which the Attorney General relies concerning heat of passion or provocation is inapposite because defendant based his defense on the absence of malice or a murderous intent in his subjective mental state, not on provocation or heat of passion. In any event, Padilla undermines the Attorney General's position. There, a defendant allegedly suffering from delusions and hallucinations asserted the trial court erred in refusing his request for a voluntary manslaughter instruction based on heat of passion or provocation. But as the Padilla court explained, the test for provocation or heat of passion that reduces murder to voluntary manslaughter is objective. (Id. at p. 678.) In other words, the facts and circumstances provoking the defendant must be "'sufficient to arouse the passions of the ordinarily reasonable [person.]'" (Ibid.) Accordingly, a defendant allegedly experiencing hallucinations is not entitled to a voluntary manslaughter instruction based on heat of passion or provocation aroused by delusion or hallucination because "[a] perception with no objective reality cannot arouse the passions of the ordinarily reasonable person." (Id. at p. 679.)
In contrast, however, the court explained that "nothing in the law necessarily precludes Padilla's hallucination from negating deliberation and premeditation so as to reduce first degree murder to second degree murder, as that test is subjective." (Padilla, supra, 103 Cal.App.4th at p. 679, italics added.) The tests for second degree murder and attempted murder are similarly subjective because each turns on the defendant's subjective state of mind, i.e., whether he subjectively harbored malice (murder) or a subjective intent to kill (attempted murder). Specifically, in the absence of the premeditation and deliberation necessary for first degree murder (Gonzalez, supra, 54 Cal.4th at p. 653), second degree murder still requires malice, and malice may be express or implied. (Ibid.) Express malice murder requires, as does attempted murder, "an intent to kill" (ibid., italics added; Saille, supra, 54 Cal.3d at p. 1114), which necessarily requires the jury to determine the defendant's subjective intent. And implied malice murder similarly depends on whether the defendant subjectively appreciated the deadly risk his actions posed to others, and proceeded anyway with a conscious disregard for life. (People v. Lasko (2000) 23 Cal.4th 101, 107.) The objective versus subjective distinction recognized in Padilla therefore supports defendant's position, not the Attorney General's.
Here, the prosecutor's misstatement of the law prejudiced defendant because a reasonable jury could conclude that in his delusional mental state, he did not actually intend to kill his parents, but rather that in shooting their demon impersonators, he would bring back his real parents. In other words, he was not killing them, he was saving their lives. Simply put, if the jury believed defendant's evidence of his mental condition, the jury could conclude he was operating under a delusional mistake of fact that negated not only the premeditation and deliberation necessary for first degree murder, but also the requisite malice for second degree murder and the intent to kill essential for attempted murder of the peace officers.
Such a mistake has long been recognized as precluding the malice that constitutes murder. (See People v. Hubert (1897) 119 Cal. 216, 222 ["evidence tending to establish a delusion as to facts which, if the facts had been as he believed they were, would constitute such jeopardy as would justify the homicide"]; accord, People v. Scott (1983) 146 Cal.App.3d 823, 829 [hallucinating defendant entitled to assert apparent necessity of commandeering vehicles to save President's life and his own]; see also People v. Griffith (1905) 146 Cal. 339, 346 ["when partial insanity or insane delusion or hallucination is relied upon, it must be [shown] that the crime charged was the product or offspring of such insanity, insane delusions, or hallucinations, and not the result of some sane reasoning and natural motives"].)
A mistake of fact is no defense to a general intent crime (People v. Gutierrez (1986) 180 Cal.App.3d 1076, 1083 [delusion that defendant was beating little birds out of children no defense to general intent crime of child battery]), but it can negate the intent necessary for specific intent offenses (ibid.; see § 28, subd. (a)). Indeed, the very case from which the common law test of insanity derives, M'Naghten's Case (1843) 10 Clark & Fin 200, 211 , held that a person's delusional grasp of reality and unfounded belief in the necessity of self-defense can preclude a murder conviction, if held in good faith.
Accordingly, a jury not misled on the law by the prosecutor's misstatements reasonably could conclude defendant did not subjectively harbor an intent to kill his parents (express malice murder), nor consciously disregard their safety in shooting them (implied malice murder). Similarly, the jury could conclude defendant did not intend to kill the police officers (attempted murder), but rather to drive away their "shadowed demon[]" forms so his real parents could return safely home.
While these beliefs were delusional, it was for the jury to determine defendant's actual, subjective mental state without misstatements of the law by the prosecutor. In abolishing the diminished capacity defense, the Legislature precluded the juries from engaging in abstract inquiries into whether a defendant could form the requisite intent. But as noted, section 28 makes evidence of a defendant's actual mental state admissible, and there is no dispute defendant's delusions and hallucinations affected his mental state. In particular, section 28, subdivision (a), provides: "[E]vidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged."
Thus, "[w]hile the Legislature, in eliminating the diminished capacity defense, 'precluded jury consideration of mental disease, defect, or disorder as evidence of a defendant's capacity to form a requisite criminal intent, . . . it did not preclude jury consideration of mental condition in deciding whether a defendant actually formed the requisite intent.' [Citations.]" (People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1450.) Put another way, "[a]t the guilt phase, the People must prove all elements of the charged offense, including mens rea," and therefore the defense may "produce lay or expert testimony to rebut the prosecution's showing of the required mental state . . . ." (People v. Mills (2012) 55 Cal.4th 663, 672; see, e.g., People v. McCowan (1986) 182 Cal.App.3d 1, 14 [defendant may present evidence and expert testimony about his or her mental state, but expert's testimony during guilt phase must leave to jury the ultimate issue of whether defendant had requisite mental state for the offense].) Contrary to the prosecutor's explanation of the law, the jury therefore could conclude defendant not only did not premeditate and deliberate his parents' deaths, but he also did not commit second degree murder or attempted murder either.
"A slight misstatement of law by a prosecutor can be rendered harmless by the court's proper instruction to the jury" (United States v. Mendoza (9th Cir. 2001) 244 F.3d 1037, 1045), but here the prosecutor incorrectly eliminated consideration of defendant's delusions on all but the issue of premeditation and deliberation, and defense counsel did not object. Indeed, defense counsel appeared to have the same misapprehension of law as the prosecutor, telling the jury, "You get to apply the hallucinations to the first and second count," apparently referring to the first degree murder allegations attached to those counts. In this posture, the prosecutor's "misleading statements" rose to the level of a federal constitutional violation because they prevented a fair trial on correct instructions of law. (Sechrest v. Ignacio (9th Cir. 2008) 549 F.3d 789, 807; Allen v. Woodford (9th Cir. 2005) 395 F.3d 979, 997.) "While we presume jurors follow the instructions they are given, we cannot equally assume they can sort out legal contradictions" introduced by the prosecutor's misstatements. (Doe v. Busby (9th Cir. 2011) 661 F.3d 1001, 1023.)
III
DISPOSITION
The judgment is reversed.
ARONSON, J. WE CONCUR: RYLAARSDAM, ACTING P. J. MOORE, J.