Opinion
H040631
02-07-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES TORREY HILL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS102193)
Defendant James Torrey Hill was charged with first degree murder (Pen. Code, § 187) and an enhancement for personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)). Defendant entered a plea of not guilty and not guilty by reason of insanity. The jury found defendant guilty as charged and sane. The trial court sentenced defendant to a term of 26 years to life. On appeal, defendant raises issues relating to the admissibility of evidence, jury instructions, and ineffective assistance of counsel. The judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise stated.
I. Statement of Facts
A. Guilt Phase - Prosecution Case
In 2009, defendant, who was then 20 years old, moved from New Mexico to Monterey to attend Monterey Peninsula College (MPC). He also enrolled in College Living Experience (CLE), a program which provided housing and support services for adults with special needs, mental disabilities, or learning disabilities. Defendant had learning disabilities and difficulty in socializing with others. Defendant initially shared an apartment with another student. However, defendant began living alone in 2010. Many CLE students and others gathered in an apartment near defendant's. Defendant, Matthew Finnigan, Annamarie Torpey, Guy Chapple, and Steven Mancha played video games, watched movies, and drank alcohol at this apartment.
Defendant and Finnigan met through CLE and they had a sexual relationship that lasted a few days. According to Torpey, "[e]verybody loved" Finnigan and defendant "was frequently in conflict with other people in the house." Defendant was "a bully. He would pick on people, especially [Finnigan]." Defendant told Torpey more than 10 times that he wanted Finnigan kicked out of CLE, but he was unable to explain why. She initially tried to be friendly with defendant, because she felt sorry for him. However, she discovered that defendant "was not well-liked because he was not nice to be around." According to Torpey, defendant drank heavily on a regular basis. He also took prescription painkillers like Vicodin or Norco, smoked marijuana, and inhaled from a pressurized can of dust spray. When defendant drank he was very gloomy and angry with himself. He never talked about demons or voices.
Defendant told Torpey that his favorite serial killer was John Wayne Gacy. She also recalled conversations with defendant in which he talked about a Pickles clown mask and stated that he "wanted to take scary pictures with the clown mask on." In other conversations, he stated that he wanted to stand outside the front door while he was wearing the clown mask and a cape and holding a knife to scare people who walked by.
Chapple knew defendant and Finnigan. At about 2:00 a.m. on September 20, 2010, defendant and Chelsea Pratt arrived at Chapple's apartment. Defendant was intoxicated and Pratt left. While Chapple and defendant were sitting on the couch, defendant, who had a crazed look in his eyes, started choking Chapple for about a minute. After defendant let go, he asked Chapple if he wanted to die tonight. Chapple replied, "[H]ell no." Defendant also told Chapple that he wanted to kill Pratt. Defendant never mentioned hearing voices. Chapple did not think that defendant wanted to kill him.
Mancha knew defendant through friends who participated in CLE. Mancha arranged for defendant to work for him, but he let him go because he was "crazy." However, defendant never referred to demons or voices. Defendant told Mancha that he was failing his classes, his father wanted nothing to do with him, and his mother was extremely upset with him. A few weeks prior to the killing, defendant said, "[I]f I kill someone, it will be Matt, and I can get away with it -- while we were playing video games one night."
On the evening of September 21, 2010, Mancha received a text message from defendant that he wanted to go to a friend's party. After Mancha learned that defendant was intoxicated, he told him to stay home. Defendant began texting friends and asking for cigarettes. Finnigan responded that he would buy him a pack. At about 9:40 p.m., Finnigan and defendant went to the Quik Stop to buy cigarettes. When they returned to defendant's apartment, defendant watched television and Finnigan played a video game. Defendant wanted to get "crazy drunk" and Finnigan agreed to get some alcohol with him. At 12:50 a.m., they went to Safeway and bought vodka and mango juice. They drank the bottle of vodka on the patio outside defendant's apartment. As defendant was drinking, "all of [his] demons came back," and he said to Finnigan, "I really do want to kill someone before I die." When they returned to defendant's apartment, defendant watched television and Finnigan played a video game.
At about 1:00 a.m., Mancha went to defendant's apartment to offer Finnigan a ride home. Defendant "looked like he was on some kind of drug or something. He was just spacing out, yelling at himself and cussing and swearing." Finnigan said that he did not want a ride home, so Mancha left. When Mancha returned about half an hour later, defendant's "eyes were just kind of like in the back of his head like he was just spacing out" and he was holding a knife in his hand. Mancha was not alarmed by the knife, because defendant had a knife collection and left a few of them lying around. Defendant was swearing and Finnigan was trying to calm him down. Finnigan again refused a ride.
At approximately 2:00 a.m., defendant took a knife, which was about 11 inches long including the handle, from his kitchen, and placed it up his sleeve. While Finnigan was lying on his stomach, defendant approached him from behind and sat down. Without turning around, Finnigan asked defendant, "[W]hat are you doing, staring at me?" Defendant thought, "I'm going to stab him, I'm going to kill him." He removed the knife from his sleeve, closed his eyes, and plunged the knife into Finnigan's back. The blade penetrated Finnigan's back up to the handle and dissected several arteries branching off his aorta. Defendant pulled the knife out and hid it under his coat. Finnigan asked, "What happened? What did you do?" Finnigan asked defendant to call 911, but defendant refused because he wanted Finnigan to suffer. Defendant put the knife in the garbage can.
Finnigan eventually found his phone and called 911. He stated that his drunken friend had stabbed him in the back and requested immediate medical attention. After he identified defendant as the person who had stabbed him, the dispatcher asked to speak to defendant. When the dispatcher asked defendant where the knife was, he replied, "Uh, uh, I have no idea. I think I'm holding it, but I'm not sure. I've been drinking." In response to further questioning, he stated that he was no longer holding the knife and he had put it in the trash can. The dispatcher asked defendant whether he had stabbed his friend on purpose. Defendant replied, "I think I was just drunk and enraged, but I'm not sure." While defendant was on the phone to the dispatcher, he told Finnigan, "It's okay. Dude, we're getting help" and "Help is on the way. Don't worry about it, dude." Defendant told the dispatcher, "It's not my fault. I was drunk as shit, ma'am." He also said, "I just like totally lost control and then like, I'm so freaking like . . . I-I'm drunk right now, so I don't know what to do. All I know is that I was getting pissed off and one thing led to another and . . . [¶] Shit! Shit happens, man."
When the police arrived at approximately 2:15 a.m., defendant answered the door. Officer Jeff Gibson saw Finnigan, who was covered in blood, at the end of the hallway. Finnigan told the officer that he had been playing a video game when defendant "all of a sudden" stabbed him in the back. They had not been arguing and they both had been drinking vodka. He also described his relationship with defendant as "friends with benefits." Officer Gibson found a bloody knife in the garbage can. Medical personnel attended to Finnigan, but he died later due to blood loss.
Meanwhile, defendant had been arrested and transported to the police station. When Officer Gibson returned to the police station, he asked defendant what had happened. Defendant stated that while he and Finnigan had been lying on defendant's bed, he began to think, "my life sucks, school sucks . . . I might as well go to jail." Defendant tried to think positive thoughts, but said to himself, "Fuck my parents, fuck life," retrieved a knife from the kitchen, and stabbed Finnigan. Defendant also told the officer that he had previously performed sexual acts upon Finnigan, but Finnigan did not reciprocate. Defendant stated that he "gets violent when he's drunk." He also stated that he suffered from major depression, but was not taking medication. According to Officer Gibson, defendant was slightly intoxicated. He was able to walk without assistance, his speech was not slurred, his responses were timely, and he did not garble words or say things that did not make sense. However, defendant had urinated on himself while he was in the patrol car. Defendant told the officer that he had consumed approximately 10 shots of vodka.
Officer Brent Hall administered a preliminary alcohol screening test at the jail at 7:40 a.m. and defendant's blood alcohol content was .064. The officer then drove defendant to the hospital. As they walked into the hospital, defendant "suggested that he remain in custody until the person that he stabbed was able to say whether he was going to press charges." Defendant's blood sample was drawn at about 8:50 a.m. At that time, his blood alcohol level was .05 percent. When they were returning to the police station, Officer Hall told defendant that he would have the opportunity to talk to another officer and that he should be honest. Officer Hall was explaining to defendant not to tell him anything about what happened when defendant stated, " 'I'm guilty.' " During the hour and a half that Officer Hall was with defendant, defendant was "fairly calm."
At approximately 9:30 a.m., Officer Jeremiah Ruttschow interrogated defendant after he had waived his Miranda rights. Defendant stated that he "loved killing" animals when he volunteered at an animal hospital in Los Alamos. According to defendant, CLE is a program for "people who [have] Aspergers, but I don't have it, but I have a small form of it." Defendant stated that he did not take any prescribed medications and he had never been diagnosed with a disability.
Defendant told the officer that he thought about killing someone when he drank alcohol and had dreamed of killing someone since he was little. He described an incident in July or August 2010, when he got drunk in his apartment and decided to carry a hammer outside to kill someone. As he watched people walk by, he realized that there was too much light, he did not want to kill a random person, he did not want the person to fight back, and he was concerned that the victim would hear him approach from behind. He was trying "to find the perfect person." He also knew that killing was illegal.
According to defendant, after he finished watching television on the night of the stabbing, Finnigan was still playing a video game. Defendant explained his thinking to the officer: "I don't want to show him that I'm weak and I don't want to show him I'm suicidal, so I'm like, I don't want to kick him out and just--let him go because I know as soon as he leaves I'm gonna kill myself. . . . I'm like, I need some fresh air." Defendant opened a window and pushed the screen onto the ground. Defendant picked up a knife and held it, "because sometimes holding a weapon calms [him] down." After the sounds from the video game annoyed him, he began listening to music. However, as he explained to the officer, "then my mind just exploded. I'm like, I need to do something before I snap and it's not going to be pretty. . . . I was like I want to complete this dream before I die." Defendant placed the knife up in the sleeve of his jacket.
Defendant described stabbing Finnigan. "I have to kill someone, or myself, before I freaking like blame myself with too much guilt. As soon as I exhaled I was like . . . I just went, 'swish.'. . . And then I pulled [the knife] back out and hid it under my coat. He's like what did you do? I'm like nothing. And he's like, 'Why am I bleeding?' I'm like 'Oh, fuck.' Then like reality hit me and I'm like 'What did I fucking do?' " Defendant was happy that he had completed his dream. Defendant explained, "[A]t least I know I can attack someone now. Before, I thought I could never do it." Defendant told the officer: "I'm gonna try this, because this person is actually not walking away that fast and they're not even walking away, period. So I was like, this is a golden opportunity. And I'm already drunk, I'm already mad, my demon's already there. And so I was like, okay, I'm going to go for it and then I was like wait, it's still illegal. So I was like okay, . . . I'm not going to do that. . . . And I was just like 'No dude, that's so wrong, why can't you just kick him out and then hurt yourself like you always do?' And I'm like, 'No. I'm sick of hurting myself and then I was just like okay, lets breathe in again,' and then I was like -- and then that's when it hit me -- I was like, 'If I close my eyes, I'll have . . . the balls to do it.' "
Defendant stated: "I felt like I accomplished my goal, but I knew it was still wrong." Though he had thought about killing Finnigan for "a good four hours," he hesitated because he knew it was illegal. Defendant described his feelings after stabbing Finnigan: "It made me feel like, 'Hey, I can handle this, if anyone wanted to hire me for being an assassin, if I ever chose to become one.' So it felt good." However, he acknowledged that such a profession was illegal. Later, he stated that stabbing Finnigan "was a good experience but it's still . . . wrong in some degree." After Officer Ruttschow told defendant that Finnigan had died, defendant said, "Now I can rest in peace."
Defendant told the officer that he had looked up how to stab or suffocate someone on the internet and he did not believe that one stab wound would cause death. He thought about stabbing himself, but did not because "it hurts too much." Defendant also described his suicide attempts. He tried to strangle himself with a rope when he was 13 years old. Two years later, he drank acetone. When he was 18 years old, he injected rubbing alcohol into his neck.
After defendant stabbed Finnigan, he did not know how to help him because he was still drunk. However, he also acknowledged that if he had helped him, he would not have fulfilled his fantasy of killing someone. He did not stab Finnigan more than once, because he wanted to "just see if he lives through this first one." Defendant explained to the officer: "And if he lived then I'd be like, oh well, I'd make up our friendship, and then I'd be like, okay, sorry about that, um and now I have a record, thank you very much, and then I'd be like, it's my fault I take responsibility for my actions. [¶] . . . [¶] And then I'd just move on and say, 'Hey, thank you for letting me try this experiment on somebody. I'm sorry it just happened to be you and I was intoxicated. And enraged.' " Defendant also commented, "If [Finnigan] would have fought back, I swear to God, like, I'd have been like, thank you. You're giving my demons a reality check. It's like, hey, stop doing this . . . ." Defendant told the officer that he had considered killing his father several times, but he was not brave enough to do it. He also realized that if his mother did not want to support him, he would not have another parent that would do so.
Defendant described his demons as "just a feeling. But when I'm on alcohol, I see them all the time." "It's like the Grim Reaper, but no skeletal bones, just a black, hooded, floaty thing." There were 12 demons when he drank alcohol. They told him to follow them and then they surrounded him and told him what to do. When he was sober, there were only three demons. On the night of the stabbing, their voices were "driving [him] insane." One of the voices told him to kill Finnigan. During the interview, there were two demons. "This one is like saying like congratulations. That one over there's . . . just shaking its head and showing me images of my mom. And I'm like I don't want . . . to see that right now." He was willing to "accept full responsibility" for killing Finnigan.
Defendant chuckled or laughed inappropriately throughout the interrogation. When the officer left him alone in the interrogation room, he talked to himself, "Ow, fuck me" and "Dude you're fucking badass. I know. Oh me."
During a search of defendant's apartment later that day, officers found the window screen outside defendant's apartment, the empty Budweiser and vodka bottles, two pocket knives, a glass marijuana pipe, and receipts from the previous evening for the cigarettes, vodka, and mango juice.
Officer Ruttschow interviewed defendant again at 4:20 p.m. Defendant stated that he had not acted on his fantasy of killing someone before because "I don't know how or I thought I was too weak. I never had the opportunity to see someone . . . who's actually not moving." It also made "more sense to get to know the person first." He would then know whether he was stronger and would be successful in acting on his fantasy. Defendant felt that he had a choice whether to kill someone and that he knew that killing someone was wrong. He discussed the circumstances in which it was "okay" to kill someone, that is, during war or in self-defense. However, he believed it was morally wrong to kill someone walking down the street and it was not "morally okay" to kill Finnigan. Defendant thought the "whole demon phase took over" and his choice was to either hurt himself or kill somebody else. Defendant chose to hurt Finnigan "[b]ecause after a while it gets kinda boring for myself. Like I have to find out new ways to do it to myself." After he stabbed Finnigan, he got "a quick rush" and "definitely felt better about [himself] after, which is kind of weird." Defendant did not feel remorse because he was drunk at the time. However, he wished that he had told Finnigan to go home before stabbing him. Defendant stated that "there are some laws that are so debatable in this country and it's like ridiculous" and referred to laws governing marijuana and abortion. However, defendant knew that it was illegal to stab someone, knew the consequences based on television shows he had watched, and was willing to accept the consequences. Before he stabbed Finnigan, defendant had the following exchange with the demons: " 'This is the final straw. You're probably going to hurt yourself until you die, and you don't want to die, do you?' And I was like, 'No, of course not but I will sacrifice someone.' I was like 'Fine, I, I won't like brutalize him but I'll just try it once,' and they were like 'Okay, try it once.' That's when it all happened. I was like, 'Okay. Finally my stress is all gone.' " If he had not stabbed Finnigan, he would have either stabbed himself or fallen asleep.
B. Guilt Phase - Defense Case
Dr. Jose Arturo Silva, a forensic psychiatrist, evaluated defendant. Dr. Silva conducted a clinical interview which included defendant's social, educational, occupational, and mental illness histories as well as his current mental status. He also conducted a neurologic examination because defendant had "a significant history of some neurologic impairment." Defendant had suffered developmental problems since birth. It appeared that defendant was unable to see for a few months after birth and had nystagmus, which is usually associated with types of brain damage. Defendant also experienced cross-eyes and tremors at another point in his life. According to Dr. Silva, these medical conditions affected brain development and defendant had or continued to have cognitive difficulties, including the ability to do math, be attentive, recognize faces, have a good vocabulary, and concentrate.
Dr. Silva concluded that when he interviewed defendant, he suffered from: Asperger's disorder, which is a form of autism; a mood disorder not otherwise specified; a cognitive disorder; attention deficit and hyperactivity disorder (ADHD) not otherwise specified; and an anxiety disorder not otherwise specified. Dr. Silva opined that defendant suffered from these illnesses as well as alcohol abuse in September 2010. Dr. Silva also concluded that defendant suffered from a "rather extremely complex general medical condition that began or that was known already, beginning at the time of birth, but is so complex that in many other settings, actually people will actually break down some of those illnesses and they call it specific illnesses because his problems are very pervasive, varied. It's like a combination of many diseases."
Dr. Silva stated that stress led to either worsening or creating psychiatric problems in defendant. Defendant's grandiose ideation began before he was in kindergarten. Defendant began suffering from a mood disorder (depression) when he was 12 or 13 years old. At that time, he also began having problems with impulse control associated with self-destructive behavior. Defendant was bullied in high school, which led to an anxiety disorder. Prior to moving to Monterey, defendant was diagnosed with learning disabilities and there was some disagreement as to whether he had an autism disorder. In addition to cognitive problems, defendant had and continued to have difficulty socializing with people in an appropriate way. Dr. Silva opined that defendant "had difficulties testing reality, but he was not what you would call psychotic when he was younger."
Defendant moved to Monterey, because his parents wanted him to go to a college. He also enrolled in a program that assisted those with a mental or developmental illness, including people with "mild mental retardation and people with mild autism, and all the types of developmental illnesses that nonetheless have allowed individuals to complete high school and are eligible to go through college training." Dr. Silva noted that defendant often required assistance in his classes at MPC, including being reminded to wear his glasses. He required "extra help to do his courses, all kinds of work, even writing," but he "got better and better with writing." Defendant also has a "serious, long-standing, chronic problem" recollecting past events.
Defendant's mood and anxiety disorders worsened substantially after he moved to Monterey. In early 2010, he began developing psychotic symptoms. "[H]e had this strange notion about being able to decipher what is the path between life and death" and "he actually became convinced ... that he could actually enter a dream and change it." On September 21 and 22, 2010, defendant exhibited symptoms of a mood disorder, that is, depression, delusions of worthlessness, auditory hallucinations and abnormal visual experiences, and he was psychotic.
In September 2010, defendant saw little black spots, which might disappear or would increase and cover half of his visual field. Defendant believed that the black spots were demons or lady death. Defendant also heard several voices, which were extremely bothersome and confusing and made it difficult to function. These voices affected defendant at about 2:00 a.m. on September 22, 2010. Dr. Silva opined that defendant's single stab of Finnigan could have been the result of an impulsive reaction. He explained that defendant had delusions encouraging one course of conduct while voices told him to do something different and he reacted quickly without thinking. When defendant stabbed Finnigan, he was "clearly having problems" determining "what appeared to be right or what might appear to be unusual for him. . . . It was changing quite a bit around the instant offense because he was hearing [voices] a lot." Defendant believed that if he could "finish a dream by either killing somebody . . . or by attacking that person in a serious manner," all his problems would be solved. Even when defendant was not psychotic, he suffered from deficits in attention and memory.
Mancha's observations of defendant's behavior shortly before the stabbing indicated to Dr. Silva that defendant's behavior was self-destructive, out of control, and very disabling. His delusions were not solely the product of alcohol intoxication. Defendant believed in these delusions before he drank alcohol. Dr. Silva opined that "with a reasonable degree of medical probability that [defendant] was most unlikely to be malingering."
Though defendant was experiencing a blackout when Mancha was present, he did not have a blackout regarding the stabbing. Dr. Silva acknowledged that a "small subpopulation of people that suffer from Asperger's disorder will be predisposed to be aggressive." Defendant was aware that if he drank alcohol, the demons would come out. Dr. Silva conceded that it was possible that defendant's reporting of demons only after he was in custody was unreliable and an attempt to improve his legal situation. Dr. Silva reviewed defendant's entire background and spoke with people with whom defendant confided or attempted to confide. None of them mentioned that defendant heard voices or demons prior to stabbing Finnigan. Defendant first mentioned voices or demons after he had been in custody for seven and a half to eight hours on the night of the stabbing.
According to Dr. Silva, defendant's "so-called rational reason" in connection with the hammer incident was not "necessarily rational" because "he's ambivalent a good deal of the time. Sometimes he thinks about harming somebody. Sometimes he changes his mind. And the fact that he may be . . . showing some evidence of rational reasoning does not explain why he gets involved in this kind of thing. . . . [¶] And one of the main issues about this man is his whole question about having courage or being a coward." "Sometimes he gets a little more courage and says . . . I'm going to go and hit somebody. [¶] The next moment, oh, I'm too afraid of that. . . . [¶] That issue, going back and forth, back and forth . . . [shows that t]his man is psychotic."
C. Sanity Phase - Defense Case
The parties stipulated that all evidence received during the guilt phase could be considered by the jury during the sanity phase.
Shaunessy Nadeau was previously a veterinarian technician assistant at an animal clinic in New Mexico. In 2008, defendant began working in the clinic's program for minors with learning disabilities. When defendant was nervous or upset, he giggled, hit his arm on his head, and twirled his hair. Defendant never showed signs of anger or acted out physically or verbally. However, he sometimes made inappropriate comments. When Nadeau told defendant that he should not make such comments, he said that he did not care. A few months after he began working at the clinic, it was noted that he was not doing very well and he was unable to follow multiple-step instructions. Defendant never performed euthanasia, but he did witness an animal being euthanized. Nadeau observed that defendant picked at scratches, bumps, and scabs on his body until they bled. He also told lies to get attention. It appeared that there was something wrong with defendant's mental health.
William Lynch, Ph.D., a clinical neuropsychologist, was retained by the defense to evaluate defendant for a mental illness, disease, or defect. He reviewed reports by Drs. Dean Delis, Taylor Fithian, and Silva and conducted two interviews with defendant. Dr. Lynch concluded that defendant suffered from Asperger's disorder, significant attention problems, difficulties with problem-solving and abstract reasoning, and a significant mental disorder characterized by hallucination and delusions. These illnesses were present in September 2010. Defendant's overall presentation was "very unusual, very quirky." Dr. Lynch believed defendant was suffering from schizophreniform disorder, which is "a brief episode of, or kind of upsurging of schizophrenic symptoms, either delusions, hallucinations, illusions, bizarre behavior, bizarre speech that does not exist all the time and seems to come and go within a short period of time." Most of defendant's behavior could be caused by Asperger's disorder, which is an autism spectrum disorder that develops in early childhood and adolescence. The individual is high-functioning, has relatively normal language, and functions in society fairly well a good part of the time. Defendant had a problem with eye contact and was not particularly good at abstract reasoning. He was unable to understand the effect of what he said and did on other people and did not have a clear understanding of what other people said or did.
According to Dr. Lynch, defendant had no insight into his mental illness. Though he had an average verbal IQ, his speed of thinking and making decisions was in the borderline range. His attention span and his short-term memory were significantly impaired. His problems in listing objects could be an indication of brain impairment. The results of personality testing suggested a significant mental disorder. His principal difficulty was with thinking, reasoning, and delusional thinking. The symptoms of his mental disorder were present at the time of the stabbing. Defendant's score of 40 on the Global Assessment of Functioning Scale indicated "some impairment in reality testing or communication, major impairment in several areas like work and school and relationships, problems with judgment, problems with thinking, problem and mood."
Dr. Lynch defined psychotic as "a severe mental disorder that usually describes a person who has problems with reality testing, hallucinations and/or delusions, severe difficulties getting along, somebody that would need hospitalization if not institutionalization." Defendant's delusions involved his descriptions of his thinking about killing a human being and his odd explanation for why it was a bad idea to go into the street with a hammer. Dr. Lynch believed defendant was delusional when he stabbed Finnigan and was experiencing hallucinations during his interviews with Officer Ruttschow. Defendant was not malingering.
When defendant stated that what he did was wrong, Dr. Lynch thought "he was almost implying that it was wrong because it didn't kind of work the way he thought it would work." In Dr. Lynch's opinion, defendant was suffering from a mental disorder at the time of the stabbing and he was not capable of understanding or appreciating the nature and consequences of his act. Defendant's mental illness was present before and after the consumption of alcohol. Alcohol consumption may have exacerbated his symptoms, but it did not cause them.
Dr. Lynch testified that defendant did not intend to murder Finnigan, but he did intend to stab him. Dr. Lynch acknowledged that defendant did not like Finnigan, bullied him, and wanted to get him kicked out of CLE. However, Dr. Lynch was not sure what defendant's goal was when he stabbed Finnigan. Dr. Lynch considered whether defendant had an antisocial personality disorder, but he did not think that this diagnosis explained defendant's behavior. Dr. Lynch assumed that defendant put the knife up his sleeve "so he could bring it to where he was going conveniently." Defendant did not need to hide the knife, because Finnigan was distracted with the video game.
Bruce Norman, a real estate manager, had been dating defendant's mother for almost 11 years. He hired defendant to do landscaping maintenance when defendant was 17. Defendant was unable to understand complex instructions and had difficulty with social perceptions and what was acceptable behavior. It also appeared that he had difficulty understanding cause and effect. Defendant dressed to draw attention to himself and he did not have friends.
Marti Torrey Hill, defendant's mother, testified that the umbilical cord was wrapped twice around defendant's neck when he was born. However, his Apgar test was normal. Defendant did not make eye contact when he was nursing. Defendant's eyes were tested when he was four months old and the diagnosis was that he was going to be blind, but his vision improved. Any changes were extremely difficult for defendant. He attended a preschool for developmentally delayed children. He did not see and hear very well during his first three years. His language was very delayed. Defendant did not have good social skills in kindergarten and he repeated kindergarten.
When the school wanted him to repeat first grade, Hill decided to home school him part-time. However, he still received occupational therapy, physical therapy, and speech therapy through the school. She home schooled him full-time from third grade until eighth grade. Defendant was home schooled part-time in ninth and tenth grades. In high school, he was in special education classes that were academic, but he was with the other students in gym and art classes. He was bullied at school and he never brought friends home.
Defendant was well behaved at home and Hill had never seen him act out verbally or physically. Defendant saw a school counselor from the age of three until he graduated from high school. When defendant was depressed at age 16 or 17, Hill took him to see a psychologist. At that time, defendant was diagnosed with Asperger's disorder.
After defendant graduated from high school in 2008, he took one or two classes at the University of New Mexico. Hill and defendant filled out the application for CLE together. His application stated that he had Asperger's disorder, developmentally-delayed mental capacity, and "maybe depression." CLE provided tutoring and defendant had a B average for his first two semesters at MPC.
Clare Manning, Ph.D., was the director of psychological services for CLE in 2010. In November 2009, she learned that defendant was struggling in his classes, because he had difficulty with reading and understanding written material. Defendant was also telling his tutor that he believed he was a girl in a boy's body. After defendant told Dr. Manning that it was a joke, she referred him to therapy.
Nancy Proto-Robinson worked as a tutor at CLE in 2009 and 2010. She tutored defendant for two hours per week in the fall of 2009 and four hours per week in the spring of 2010. She never noticed that he was under the influence of alcohol. Defendant began struggling in his classes in September 2009. The following month, Proto-Robinson felt that defendant and his family needed to acknowledge defendant's limitations. In November 2009, she suggested to CLE staff that defendant needed therapy. In September 2010, defendant told her that "he didn't think he was getting help from the therapist that he was seeing and that they wanted to talk to him about his drinking, and that he wasn't finding it helpful."
Thomas Joseph Reidy, Ph.D., a forensic psychologist, met with defendant on five occasions for a total of eight and a half hours. According to Dr. Reidy, defendant "likely had some wiring defects from birth," developmental delays, and a lifelong problem with social interactions. He had a history of depression, suicidal thinking, and self-mutilation, including cutting and burning himself. Defendant's demeanor was odd and his reasoning was not clear. Dr. Reidy referred to defendant's interest in killing someone since he was eight, his demons, and hallucinatory experiences.
Dr. Reidy diagnosed defendant with Asperger's disorder and a mood disorder (depression). Dr. Reidy also found evidence of psychosis, including hallucinations and delusions, false beliefs, and hearing voices. Defendant had these disorders when he stabbed Finnigan. Defendant had little insight into cause and effect in social and emotional areas. He also engaged in magical thinking and had difficulty with reality testing. Defendant was not malingering.
Dr. Reidy opined that defendant's alcohol disorder "was not the primary cause of the events that occurred that night." He explained that "[a]lcohol often occurs in these kinds of cases along with mental illness. It's sort of a dual diagnosis . . . . [¶] . . . And alcohol tends to exacerbate a preexisting condition; it can produce symptoms of a preexisting condition, or if symptoms are already present, it can make them worse. . . . I don't believe it was alcohol alone that caused this behavior because there is too much evidence of other symptoms of psychosis that played a more prominent role." Dr. Reidy found no evidence that defendant had features of an antisocial personality disorder.
Dr. Reidy concluded that, on September 22, 2010, defendant had a mental disease or defect, and because of that mental disease or defect, he was incapable of knowing or understanding the nature and quality of his act, and he was incapable of knowing or understanding the moral wrongfulness of his act. Thus, defendant was "essentially insane." Dr. Reidy thought that defendant "understood the legal wrongfulness, but not the moral wrongfulness of his actions. [¶] . . . And it was because of the delusional thinking, the distortion of reality and the hallucinations that he really didn't comprehend that moral wrongfulness that was going on."
When Dr. Reidy asked defendant whether he intended to stab Finnigan, his impression was that defendant started out stabbing himself, but he ultimately stabbed Finnigan. Defendant knew that he was stabbing a human being. According to Dr. Reidy, though defendant repeatedly stated that what he did was wrong, he did not understand the moral wrongfulness due to his delusions and auditory hallucinations.
D. Sanity Phase - Prosecution Case
Dean Delis, Ph.D., a clinical psychologist and professor of psychiatry emeritus at University of California at San Diego School of Medicine, was appointed by the court to conduct an evaluation of defendant. He reviewed various reports and interviewed defendant for six hours. Dr. Delis found that "there was no firm evidence of any organic problem." However, defendant had developmental delays and learning disabilities. He also had a difficult childhood: he was bullied in school, his parents divorced, and he suffered from depression. Defendant began drinking when he was 13 or 14. He had his first alcohol blackout when he was 19 and began drinking heavily around that time. He used drugs sporadically. His drug of choice was cocaine.
Defendant told Dr. Delis about the events leading up to the stabbing. The morning before the stabbing, defendant heard that his father was coming to visit him. He disliked his father and did not want him to come. However, defendant did not want to tell his father not to come, because he was financially dependent on him. He was "so panicked" about the visit that he had a "nonstop urge to drink and use drugs." He was also panicked about failing one of his classes and he had "the shakes from alcohol withdrawal." As a result, he "felt he was in a death spiral." After defendant and Finnigan began drinking, defendant began to see and hear demons who were telling him to either kill himself or harm somebody else. Defendant made the decision to harm himself, but he missed and stabbed Finnigan.
Dr. Delis's first impression was that defendant had a drinking problem. According to defendant, the black spots representing demons occurred primarily when he drank. Defendant was also suffering from depression and anxiety at that time. He vacillated between feeling depressed and having impulses to kill someone. Defendant "communicated that he knew those impulses were wrong, but they were very strong, longstanding desires in him."
In Dr. Delis's opinion, defendant had a very complex psychological makeup. He had some features of Asperger's disorder. However, he had features that were inconsistent with that diagnosis, including his report that he had five good friends in high school and that he socialized a lot in college and where he was living. Defendant also had some features of antisocial personality disorder, including his longstanding desire to kill someone, aggressive tendencies, and lack of empathy. Dr. Delis noted that lack of empathy could be part of a social perception problem or Asperger's disorder and it was a key feature of antisocial personality disorder. Dr. Delis would not diagnose defendant with either Asperger's disorder or antisocial personality disorder, because he only showed some features of those disorders.
Dr. Delis opined that though defendant experienced black spots as demons and heard voices when he was drunk, he still knew right from wrong at the time of the stabbing. He based this opinion on defendant's interview with Officer Ruttschow. Defendant talked about his need to harm himself or act out his fantasy of harming somebody else and he "was waiting for what he called the golden opportunity to act out this fantasy. He . . . expressed that it was wrong, but it was such an overwhelming fantasy . . . ." Defendant also told the officer that he had researched the best way to harm someone and that Finnigan presented the perfect opportunity because he knew him and his back was to him. Thus, defendant's conduct showed a planning component to his stabbing Finnigan. Hiding the knife in his sleeve and approaching Finnigan from behind also showed planning by defendant.
According to Dr. Delis, defendant had "a pretty sophisticated understanding of the moral nuances related to killing" as he demonstrated in his interview with Officer Ruttschow. Defendant's accurate recall of the details of the stabbing, which matched the physical evidence, showed that he did not suffer an alcoholic blackout at that time. When Dr. Delis interviewed defendant, defendant's version of events differed slightly from the version that he gave Officer Ruttschow. Instead of acting out a longstanding fantasy, he told Dr. Delis that the stabbing was a mistake. Defendant also told Dr. Delis that "jail was not what he thought it was going to be; he did not like being in jail."
Dr. Delis conducted various tests. Defendant's IQ fell "solidly within the average range" on the Wexler Abbreviated Scale of Intelligence. His reading test score was "mildly below average," thus indicating that he might have a learning disorder. Dr. Delis also noted that defendant was "very coherent" during the interview. The Minnesota Multiphasic Personality Inventory, which assesses different aspects of psychological states and personality traits, revealed moderate to severe levels of paranoia and disturbed thinking.
Dr. Delis opined that defendant's motive was "this longstanding fantasy to see somebody die. . . . Plus, he was in a situation where you might call it a perfect storm where he was failing in school; his father was coming; he had alcohol withdrawal, and he wanted to escape. And the motive was a combination to act out his fantasy and get to a safe place." His motive also involved his dislike of Finnigan and his frustration with their sexual relationship.
Dr. Delis acknowledged that defendant had significant mental impairments. He opined, however, that these impairments did not "cause him to not know the nature and quality of the act, or right from wrong in the killing of . . . Finnigan."
Dr. William Taylor Fithian III, M.D., was appointed by the court to conduct an evaluation of defendant's sanity and he interviewed defendant twice. According to Dr. Fithian, defendant did not have a "major Axis I criteria of diagnosis such as schizophrenia, bipolar disorder, major depression with psychotic features." It was Dr. Fithian's "impression that [defendant] understood what took place on September 22nd, 2010, that he understood the consequences of his behavior . . . and equally important is he took the culpability and responsibility for his actions." Dr. Fithian testified: "I thought that alcohol was the reason why he ended up stabbing his friend. In my opinion, my interview and findings showed no consistency with someone who was so psychiatrically or psychologically impaired that they could not have understood the nature and the quality of their acts, the criminality of their acts, or the rightfulness or wrongfulness of their acts."
Dr. Fithian recognized that defendant had been diagnosed with Asperger's disorder, an Axis I diagnosis, learning disabilities, personality disabilities, and substance abuse. He thought that defendant brought with him to California this "spectrum of mental disorders, disease or defects" and that he "probably still carries some of them with him today." Dr. Fithian noted that individuals with Asperger's disorder are "much more likely to be the victims of crime than the perpetrators of crime." He also pointed out that defendant "himself said, . . . if I had not been drinking, I would not have done this." Dr. Fithian did "not believe that general anxiety disorders, mood disorders, typical mood disorders with mild depression, cognitive disorders, Asperger's syndrome disorders arise to that level . . . that would create someone to be legally insane."
II. Discussion
A. Admissibility of Evidence
Defendant contends that the trial court erred when it admitted improper character evidence. This evidence included: (1) two uncharged acts, that is, the hammer incident and the choking incident; (2) photographs of knives not used in the stabbing; and (3) his fascination with a serial killer and defendant's bizarre alter ego, a clown who liked to scare people with a knife.
1. Legal Principles
" 'Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of [Evidence Code] section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition.' [Citation.]" (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).) Thus, evidence may be admitted to prove, among other things, intent. (Evid. Code, § 1101, subd. (b).)
" 'When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, "[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded." [Citation.]' " (Fuiava, supra, 53 Cal.4th at p. 667.) "To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented." (People v. Jones (2011) 51 Cal.4th 346, 371.) "The least degree of similarity is required to prove intent or mental state." (People v. Thomas (2011) 52 Cal.4th 336, 355.) "In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Moreover, the probative value of the uncharged offense must be weighed against the danger "of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
" ' "We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." [Citation.]' [Citation.]" (Fuiava, supra, 53 Cal.4th at pp. 667-668.) We will reverse only if the trial court's ruling was "arbitrary, whimsical, or capricious as a matter of law. [Citation.]" (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614.)
2. Analysis
a. Uncharged Acts
The prosecutor brought an in limine motion in which he requested the admission of two uncharged acts to prove intent. The hammer incident referred to an incident which defendant described during a police interrogation. It occurred about four weeks before the charged offense when defendant got drunk and went looking for someone to kill with a hammer. As defendant watched people walk by, he realized that there was too much light, he did not want the person to fight back, he backed off because it was illegal, and he was concerned that the victim would hear him approach from behind. He was trying "to find the perfect person." The choking incident was reported by Chapple to the police shortly after the stabbing. A week and a half before the stabbing, defendant choked Chapple and asked him if he wanted to die. The incident was corroborated by Chapple's contemporary statements to friends, a friend's observation of red marks on Chapple's neck, and defendant's statement that he had been drunk and must have grabbed onto Chapple's throat as he fell. The trial court ruled that evidence of both incidents was admissible on the issue of intent.
Here, the trial court did not abuse its discretion when it admitted evidence of the hammer incident to prove intent. The central issue at trial was defendant's intent when he stabbed Finnigan. Both the hammer incident and the charged offense involved potential innocent victims and the use of a household item as a weapon. Both also corroborated defendant's admission that he had a dream to kill someone. Moreover, defendant's statement about the hammer incident provided a context to his admissions about why he killed Finnigan. Defendant stated that he did not attack anyone with the hammer, because the people were moving and might retaliate. Regarding the charged offense, defendant stated that he stabbed Finnigan, because he was not moving and he knew that he could prevail if Finnigan fought back. Defendant also stated that he did not hit anyone with the hammer, because he knew it was illegal. Defendant stated that he hesitated to stab Finnigan for the same reason. Thus, the evidence of the hammer incident was substantially probative on the issues of whether defendant was capable of forming an intent to kill, knew that killing was wrong, and was capable of controlling his impulses. Moreover, this evidence was not unduly prejudicial. Defendant admitted that he stabbed Finnigan in the back for no reason. Evidence that he went outside with a hammer and thought about killing someone was far less inflammatory than the charged offense. (See People v. Kipp (1998) 18 Cal.4th 349, 372.) Thus, the trial court did not abuse its discretion evidence when it concluded that the probative value of this evidence outweighed its prejudicial effect.
Defendant argues that the hammer incident showed that he thought about death and scaring people, but did not show an intent to kill. However, defendant stated that he intended to kill a person with a hammer. A person may have an intent to kill though it is never acted upon. Moreover, defendant's failure to attack anyone with the hammer showed that defendant knew the wrongfulness of his act and the ability to control his impulses.
Defendant also claims that the hammer incident might not have taken place, because the only evidence to support it was defendant's statements to the police. However, defendant also told his psychological expert about the hammer incident. Moreover, defendant's statements were corroborated by the presence of the hammer in his apartment. Thus, there was other evidence that tended to support defendant's statements.
Regarding the choking incident, it was sufficiently similar to the charged offense to prove defendant's intent. Both the choking incident and the charged offense indicated an intent to kill and corroborated defendant's dream to kill someone. On both occasions, defendant was drunk, the victims were defendant's friends who had done nothing to provoke him, and the victims were isolated in defendant's apartment. Further, the choking incident was relevant, because it occurred within days of the charged offense. It also demonstrated the escalation of defendant's aggression from going outside with a hammer and thinking about attacking someone, to choking Chapple but ultimately letting him live, to stabbing Finnigan in the back. In addition, since defendant stopped choking Chapple, it showed that he was able to control his impulses. Thus, the evidence of the choking evidence was relevant to show that defendant understood the nature of his actions and knew that killing was wrong. Moreover, as with the hammer incident, the evidence of the choking incident was not unduly prejudicial. Evidence that he choked someone, but stopped was far less inflammatory than the charged offense. (See People v. Kipp, supra, 18 Cal.4th at p. 372.) Thus, the trial court did not abuse its discretion when it concluded that the probative value of this evidence outweighed its prejudicial effect.
Defendant argues that the evidence of both uncharged acts was cumulative, because "[t]here was already a great deal of evidence admitted showing [he] had motive and acted with intent to kill." However, defendant later argues that "there was compelling evidence that [he] did not intend to kill." Given that the defense theory was that he did not intend to kill Finnigan, the trial court did not abuse its discretion in admitting the evidence of both uncharged acts.
b. Photographs of Knives
The defense brought a motion to exclude photographs of and testimony about weapons not used in the charged offenses. These weapons included: a knife found in defendant's bedroom; a Bowie knife that defendant brought to CLE; a knife that defendant gave to Mancha; and a Taser that was found in defendant's bedroom. Defense counsel stated that there would be "testimony that [defendant] had a fascination with knives, liked knives, liked collecting knives," but she argued that the photographs of the knives were not relevant. She also stated that "the experts will surmise that he had a fascination with knives, and some may say that it means one thing, and others will say it means something else, but that it's part of his Asperger's disorder and his preoccupation with a particular object or objects, as well as kind of a preoccupation with death, whether it be his own or somebody else's." The prosecutor also pointed out that Drs. Silva and Delis discussed defendant's knife collection in their reports. The prosecutor agreed not to introduce photographs of the Bowie knife and the Taser.
The trial court described the exhibits at issue. Exhibit 24 was a photograph of "serrated-edged, curved, pointed blade . . . knife," or pocket knife, which was found in defendant's closet. Exhibit 31 was a photograph of a "long stiletto gravity knife switchblade-type knife," which was given by defendant to Mancha. The trial court also noted that both knives were "easily and/or immediately associated with violence and offensive behavior." The trial court granted the motion as to the Bowie knife and the Taser. However, the trial court denied the motion to exclude exhibits 24 and 31, "subject to any objections by [the defense] at the time, and admitted after the relevant foundation is laid, essentially, the discussion by some experts that the collecting of the knives is in some way important." After defense counsel subsequently renewed her objection to the admission of exhibits 24 and 31, the trial court repeated its ruling.
"When the prosecution relies on evidence regarding a specific type of weapon, it is error to admit evidence that other weapons were found in the defendant's possession, for such evidence tends to show not that he committed the crime, but only that he is the sort of person who carries deadly weapons. [Citations.]" (People v. Barnwell (2007) 41 Cal.4th 1038, 1056.)
Defendant contends that the "[a]dmission of evidence that [he] collected knives and pictures of knives created a danger that the jury would find [he] was simply the kind of person who collected deadly weapons."
Here, however, defense counsel stated at the hearing on the motion that there would be "testimony that [defendant] had a fascination with knives, liked knives, liked collecting knives." Thus, the two photographs would corroborate this testimony. These photographs of the type of knives that defendant collected tended to show that he was fascinated by deadly weapons. This fascination corroborated his admission that he had a lifelong desire to kill someone and was somewhat probative of defendant's intent when he stabbed Finnigan. Moreover, the evidence was not unduly prejudicial. Defendant did not object to the admission of the knife used to kill Finnigan or to Mancha's testimony that he saw defendant holding a knife shortly before the stabbing. In light of this evidence, the admission of two photographs of knives that were part of his collection was not inflammatory. (See People v. Kipp, supra, 18 Cal.4th at p. 372.) Thus, the trial court did not abuse its discretion.
Defendant's reliance on McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1382-1383 (McKinney), People v. Riser (1956) 47 Cal.2d 566, 577, People v. Henderson (1976) 58 Cal.App.3d 349, 360 (Henderson), and People v. Archer (2000) 82 Cal.App.4th 1380, 1392 (Archer), is misplaced. Unlike in the present case, the weapons admitted into evidence in McKinney, Riser, Hernandez, and Archer had no relevance to any issue at trial.
c. Testimony Relating to Defendant's Statements
The prosecutor brought a motion to admit evidence of a "Juggalo" clown mask that was found in defendant's apartment. He argued that it was relevant, because defendant told Torpey that John Wayne Gacy was his favorite serial killer and Gacy dressed up as a clown and killed many children. Defense counsel noted that defendant had stated that he "used to be a huge Insane Clown Posse fan, and . . . used to put the mask on" but he no longer did that. Regarding Torpey's statement, she stated that it was "extremely late discovery" and subject to cross-examination. She argued that showing the jury the mask and admitting defendant's statement that he "used to be a huge Insane Clown Posse fan, it's very prejudicial for this case to say, oh, if you're an[] ICP fan and you have a clown mask, you must be a serial killer . . . ." The trial court granted the motion to exclude the mask. Defense counsel did not object to Torpey's testimony that defendant told her John Wayne Gacy was his favorite serial killer.
The prosecutor also requested admission of a text message that defendant sent three months before the murder. It stated: "Like on your birthday, Pickles, also known as me, could be holding a chef's knife over my head and pretend to stab you, and you could fake being scared." The prosecutor argued that the text message was admissible to show defendant's intent on killing someone. Defense counsel argued that this text message was too remote in time to be relevant on the issue of intent, the individual who received the text message was not on the witness list, and it was prejudicial. The trial court ruled the text message was admissible.
At trial, Torpey testified that she did not remember the text message. However, she recalled conversations that related to the text. She testified: "Pickles is the clown mask that he had, the really scary clown mask, and in these messages, it's saying that he wanted to take scary pictures with the clown mask on. [¶] And he had had other conversations with me about wanting to stand outside the front door wearing the clown mask in a cape, holding a knife to scare people who walked by." Defense counsel did not object to this testimony. Torpey also testified that defendant told her that John Wayne Gacy was his favorite serial killer and that she "recognized that as the serial killer who killed mostly little boys, wearing a clown mask." Defense counsel objected on hearsay and lack of personal knowledge grounds and moved to strike the testimony. The trial court stated that "the last part that the witness just stated describing Mr. Gacy and his predilections will be stricken, and the jury is ordered not to consider it for any purpose."
Defendant contends that admission of evidence that he was "fascinated with serial killer John Wayne Gacy, and dressing up . . . as 'Pickles' in a clown mask to scare people with a knife" was more prejudicial than probative.
However, though the clown mask was excluded, defendant did not move in limine to exclude Torpey's testimony that defendant told her that John Wayne Gacy was his favorite serial killer on the ground that it was more prejudicial than probative under Evidence Code section 352. He also did not object to the testimony on this ground at trial. Thus, the issue has been forfeited for review. (Evid. Code, § 353, subd. (a); People v. Kipp (2001) 26 Cal.4th 1100, 1124.) Even if the claim has not been forfeited, the trial court did not abuse its discretion in admitting the evidence. Defendant's statement that he had a favorite serial killer corroborated his admission that he had wanted to kill someone since he was a child, which tended to prove that he stabbed Finnigan with the intent to kill. This evidence was not unduly prejudicial. Defendant's fascination with a serial killer was not inflammatory given his admissions that he had wanted to kill someone and had killed Finnigan.
Though defendant objected to the text message, he did not object on Evidence Code section 352 grounds to Torpey's testimony that defendant told her about wanting to dress up as a clown and scare people with a knife. Accordingly, the issue has been forfeited by his failure to object. (Evid. Code, § 353, subd. (a); People v. Kipp, supra, 26 Cal.4th at p. 1124.) In any event, this evidence was relevant to show that defendant wanted to be perceived as dangerous and deadly, which corroborated his admission that he had wanted to kill someone since he was a child and tended to show that he intended to kill Finnigan. Moreover, the prejudicial effect of the evidence was minimal compared to his admission that he had stabbed Finnigan. (See People v. Kipp, supra, 18 Cal.4th at p. 372.) Thus, the trial court did not abuse its discretion when it admitted Torpey's testimony that defendant wanted to dress up as a scary clown.
B. Instructions on Mental Incapacity
Defendant also contends that he was deprived of federal due process and the Sixth Amendment right to present a defense by the trial court's failure to instruct on mental incapacity at the guilt or insanity phases.
1. Background
Defense counsel requested that the trial court instruct the jury during the guilt phase with CALCRIM No. 3455. CALCRIM No. 3455 [Mental Incapacity as a Defense (Pen. Code, §§ 25, 29.8)] provides in relevant part: "The defendant was legally incapable of committing a crime because of mental incapacity if at the time the crime was committed: [¶] 1. (He/she) had a mental disease or defect; [¶] AND [¶] 2. Because of that disease or defect, (he/she) was incapable of knowing or understanding the nature and quality of (his/her) act or was incapable of knowing or understanding that (his/her) act was morally or legally wrong. [¶] The defendant has the burden of proving this defense by a preponderance of the evidence. [This is a different burden of proof from proof beyond a reasonable doubt.] To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that (he/she) was legally incapable of committing a crime because of mental incapacity." However, defense counsel withdrew the instruction and the trial court agreed that it would not be given.
The jury was instructed pursuant to CALCRIM No. 3428 [Mental Impairment: Defense to Specific Intent or Mental State (Pen. Code, § 28)] during the guilt phase: "You have heard evidence that the defendant may have suffered from a mental disease or defect or disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: malice aforethought. If the People have not met this burden, you must find the defendant not guilty of murder."
During the sanity phase, the trial court discussed CALCRIM No. 3455 with counsel: "We did not give [CALCRIM No. 3455] during the guilt phase. I've subsequently re-reviewed it, and think it's possible that it should have been given during that phase, and advised both attorneys of that today, just before lunch so they could formulate a response or a request for what to do next. [¶] The Court has not had an opportunity to do any extensive research. I've just been re-reading the instruction, and the bench notes and the commentary."
The prosecutor argued that CALCRIM No. 3455 should not have been given at the guilt phase, because the instruction should be given "only in a situation where a person is raising this mental defense of disease or defect in one single trial, and not asking for a bifurcated trial." Defense counsel pointed out that the trial court had "not granted a bifurcated trial on the defense of mental incapacity, but granted a bifurcated trial or the two separate trials of guilt versus sanity." Defense counsel argued that the trial court had a sua sponte duty to instruct on mental incapacity when defendant had raised the defense which was supported by substantial evidence. Thus, defense counsel requested a mistrial and a new trial. The trial court concluded that CALCRIM No. 3455 should not have been given and denied the new trial motion.
The trial court did not instruct the jury with CALCRIM No. 3455 during the sanity phase. Instead, it instructed the jury with CALCRIM No. 3450, which provided in relevant part: "The Defendant must prove that it is more likely than not that he was legally insane when he committed the crime. The Defendant was legally insane if, one, when he committed the crime he had a mental disease or defect, and, two, because of that disease or defect, he was incapable of knowing or understanding the nature and quality of his act or was incapable of knowing or understand[ing] that his act was morally or legally wrong."
2. Legal Principles
We begin with a review of the defense of mental incapacity to provide a context for defendant's arguments. Former section 26 provided in relevant part: "All persons are capable of committing crimes except those belonging to the following classes: [¶] Two - Idiots [¶] Three - Lunatics and insane persons . . . ." In In re Ramon M. (1978) 22 Cal.3d 419 (Ramon M.), the California Supreme Court considered whether the defense of idiocy was governed by the same standard as the defense of insanity. Ramon M. observed that the Legislature had never defined these terms, but that People v. Gorshen (1959) 51 Cal.2d 716 had "defined idiocy as '[e]xtreme deficiency in intelligence, commonly due to incomplete or abnormal development of the brain.' " (Ramon M., at pp. 424-425.) Ramon M. also stated that "the judiciary has not found it necessary to fashion separate tests for the defenses of idiocy, lunacy, and insanity. Because all those terms describe mental conditions which render a defendant not 'of sound mind,' a single test, defining the degree of mental incapacity which renders a person incapable of crime, will suffice to instruct the jury on each of these defenses." (Id. at p. 425.) The test for idiocy, lunacy, and insanity had previously been the M'Naghten test. (Ibid.) However, recognizing that it had rejected the M'Naghten test for insanity and replaced it with the test set forth by the American Law Institute (ALI) in People v. Drew (1978) 22 Cal.3d 333, the Ramon M. court held that the ALI test for insanity also governed the defense of idiocy. (Ramon M., at p. 427.)
People v. Gorshen, supra, 51 Cal.2d 716, has been superseded by statute, as discussed in People v. Saille (1991) 54 Cal.3d 1103, 1109-1119, and overruled on a number of other points. (See People v. Lasko (2000) 23 Cal.4th 101, 110.)
In dicta, Ramon M., supra, 22 Cal.3d 419 stated: "Although Penal Code sections 21 and 26 appear to establish a defense of idiocy separate from that of insanity, neither statute nor reported decisions indicate how that defense should be raised and tried. When the Legislature established procedures for the assertion and trial of the defense of insanity (Pen. Code, §§ 1016, 1017, 1026, 1027) and for the confinement and treatment of those found not guilty by reason of insanity (Pen. Code, §§ 1026, 1026a, 1026.1) it probably intended those statutes to apply to all persons who assertedly lack mental capacity to commit crime. (See Louisell & Hazard, Insanity as a Defense: The Bifurcated Trial (1961) 49 Cal.L.Rev. 805, 809-810.) In light of this legislative intent, and of the identity of the legal test for idiocy and insanity under both the M'Naghten rules and the ALI standard, we conclude that the term 'insanity' in Penal Code sections 1016 through 1027 refers to mental incapacity, whether arising from mental illness or mental retardation. Accordingly a defendant asserting a defense of idiocy should raise that defense by separate plea (see Pen. Code, §§ 1016, 1017), may obtain a bifurcated trial (see Pen. Code, §1026), must prove his incapacity by a preponderance of the evidence (cf. People v. Drew, supra, ante, at p. 348), and if successful is subject to confinement as provided in sections 1026, 1026a, and 1026.1." (Ramon M., at p. 427, fn. 10.)
In 1981, section 26 was amended to delete exception three for lunatics and insane persons. (Stats. 1981, ch. 404, § 3, p. 1592.) In 1982, the voters enacted Proposition 8 which added section 25, subdivision (b) and reinstated the M'Naghten test for insanity. (People v. Phillips (2000) 83 Cal.App.4th 170, 173 (Phillips).) Subdivision (b) of section 25 provides in part that insanity shall only be found when the defendant "was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense." (§ 25, subd. (b).) The Phillips court considered whether the ALI test adopted in Ramon M. was still applicable for the defense of idiocy. (Phillips, at p. 173.) Phillips reasoned: "As the court pointed out in Ramon M., there is no basis for distinguishing between insanity and idiocy for the purposes of imposing criminal responsibility. It would make no sense to conclude that lack of capacity to commit a crime is governed under one test in the case of mental illness and another test in the case of mental retardation." (Ibid.) Accordingly, Phillips held that the test for insanity as stated in section 25, subdivision (b) applied to the defense of idiocy under former section 26. (Ibid.)
As People v. Lawley (2002) 27 Cal.4th 102, explained: "Despite the use of the conjunctive 'and' instead of M'Naghten's disjunctive 'or,' this court has interpreted [section 25, subdivision (b)] as recognizing two distinct and independent bases on which a verdict of not guilty by reason of insanity might be returned. [Citations.]" (Id. at p. 170, italics omitted.)
In 2007, the term "idiots" was replaced by the term "[p]ersons who are mentally incapacitated." (§ 26, as amended by Stats. 2007, ch. 31, § 3.) There was no intent by this amendment to "adversely affect decisional case law that has previously interpreted, or used, the term[] 'idiot,' . . . or any variation thereof." (Legis. Counsel's Dig., Assem. Bill No. 1640 (2007-2008 Reg. Sess.).)
More recently, People v. Elmore (2014) 59 Cal.4th 121 recognized that "[m]ental incapacity under section 26 is determined by the M'Naghten test for legal insanity provided in section 25, subdivision (b). [Citations.]" (Id. at p. 140, italics omitted.)
3. Analysis
Defendant argues that the trial court had a sua sponte duty to instruct on the defense of mental incapacity at the guilt phase. Defendant asserts that "the [L]egislature intended insanity to stand alone" by removing it from section 26 and codifying it in section 25. Thus, he maintains that the categories of incapacity listed in section 26 are determined at the guilt phase while insanity is determined in a separate proceeding.
The test for mental incapacity is the same as that for insanity. (Ramon M., supra, 22 Cal.3d at p. 425; Phillips, supra, 83 Cal.App.4th at p. 173.) Since CALCRIM Nos. 3455 (mental incapacity) and 3450 (insanity), as discussed infra, have identical elements, it would serve no purpose to require the jury to resolve the same issue in both the guilt and sanity phases. The prosecutor made this point at the hearing: "[I]f [CALCRIM No. 3455] had been given in the guilt phase and the jury rejected it and came back with a guilty verdict, [defense counsel] would have virtually nothing to argue at the insanity phase." Moreover, Ramon's conclusion that the term insanity "refers to mental incapacity, whether arising from mental illness or mental retardation" supports our view that the trial court properly instructed the jury regarding defendant's mental incapacity defense at the sanity phase. (Ramon M., supra, 22 Cal.3d at p. 427, fn. 10.)
We consider defendant's argument that CALCRIM No. 3455 erroneously defines mental incapacity in conjunction with his argument that defense counsel rendered ineffective assistance by failing to request CALJIC No. 4.47.
We also note that defendant was not deprived of the opportunity to present a defense based on his mental disabilities at the guilt phase. He introduced evidence of these mental disabilities through Dr. Silva, a forensic psychiatrist. The trial court then instructed the jury pursuant to CALCRIM No. 3428 that it could consider how defendant's mental disease or defect affected his mental state. The first element of CALCRIM No. 3455 (mental incapacity) is a finding that the defendant had a mental disease or defect.
Defendant relies on People v. James (2015) 238 Cal.App.4th 794 (James) to support his position. He acknowledges that James did not involve the issue of idiocy, but he points out that it involved another condition which established incapacity to commit a crime, that is, unconsciousness. Defendant also notes that the court in James rejected the respondent's argument that the admission of evidence of unconsciousness at both the guilt and sanity phases gave the defendant " 'two bites at the proverbial apple.' " (James, at p. 811.)
In James, the defendant was charged with aggravated mayhem and assault likely to produce great bodily injury. (James, supra, 238 Cal.App.4th at p. 798.) The defendant entered a plea of not guilty by reason of insanity. (Ibid.) During the guilt phase, the defendant presented expert testimony that he was unconscious when he committed the charged offenses. (Id. at pp. 801-802.) The trial court denied the defendant's request to instruct the jury on unconsciousness as a defense (CALCRIM No. 3425) at the guilt phase of trial. (Id. at p. 802.) The jury found defendant guilty of mayhem and assault likely to produce great bodily injury. (Ibid.) Following the sanity phase of trial, defendant was found not guilty by reason of insanity. (Id. at p. 803.) James held that "the complete defense of unconsciousness under section 26 applies regardless of whether the actor's mental state of unconsciousness is induced by 'unsound mind,' including that caused by mental illness, and not just to those who are rendered unconscious by physical or organic conditions." (Id. at p. 809.) James concluded that the trial court's failure to give CALCRIM No. 3425 constituted prejudicial error. (Ibid.) James is distinguishable from the present case. First, the tests for unconsciousness and insanity are different while those for mental incapacity and insanity are the same. Second, the James court held that it was error to fail to instruct the jury pursuant to CALCRIM No. 3425. Here, the jury was instructed with CALCRIM No. 3428, which is similar to CALCRIM No. 3425, and instructs the jury that the prosecution had the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state.
CALCRIM No. 3425 states: "The defendant is not guilty of <insert crime[s]> if (he/she) acted while unconscious. Someone is unconscious when he or she is not conscious of his or her actions. [Someone may be unconscious even though able to move.] [¶] Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic seizure[,]/ [or] involuntary intoxication[,]/ [or] <insert a similar condition>). [¶] [The defense of unconsciousness may not be based on voluntary intoxication.] [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when (he/she) acted. If there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious, unless based on all the evidence, you have a reasonable doubt that (he/she) was conscious, in which case you must find (him/her) not guilty."
Defendant also contends that "[e]ven if the court did not have a sua sponte duty to instruct on mental incapacity during the guilt phase of trial, it did during the sanity phase."
If the trial court had instructed the jury pursuant to CALCRIM No. 3455, the jury would have been instructed that defendant was legally incapable of committing a crime if: (1) he had a mental disease or defect when he committed the crime; and (2) because of that disease or defect, he was incapable of knowing or understanding the nature and quality of his act or was incapable of knowing or understanding that his act was morally or legally wrong. During the sanity phase, the trial court instructed the jury pursuant to CALCRIM No. 3450 that defendant was legally insane if: (1) he had a mental disease or defect when he committed the crime; and (2) because of that disease or defect, he was incapable of knowing or understanding the nature and quality of his act or was incapable of knowing or understanding that his act was morally or legally wrong. The only difference between these two definitions is the label attached to the condition, that is, mental incapacity or insanity.
However, here, as defendant points out, the jury was also instructed that "[n]one of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts." Defendant argues that the Legislature enacted section 29.8 to exclude these disorders as a basis for an insanity defense, but did not do so for a mental incapacity defense. The Attorney General counters that since the tests for insanity and mental incapacity are the same, it would not make sense to exclude certain bases for an insanity defense and allow the same bases for a mental incapacity defense.
We need not resolve this issue, because there was insufficient evidence that defendant suffered from a personality disorder, adjustment disorder, or seizure disorder. Dr. Silva testified during the guilt phase that defendant suffered from developmental problems from birth, Asperger's disorder, a mood disorder not otherwise specified, a cognitive disorder, ADHD not otherwise specified, an anxiety disorder not otherwise specified, and alcohol abuse. During the sanity phase, Dr. Lynch testified that defendant suffered from Asperger's disorder, attention problems, difficulties with problem-solving and abstract reasoning, and a mental disorder characterized by hallucinations and delusions. He also testified that defendant suffered from "schizophreniform disorder, which is a periodic upsurging of schizophrenic symptoms . . . ." Dr. Reidy testified that defendant suffered from Asperger's disorder, a mood disorder (depression), suicidal thinking, and psychosis, including hallucinations and delusions, false beliefs, and hearing voices. Dr. Delis testified that defendant had some features of Asperger's disorder and some features of antisocial personality disorder, but he would not diagnose defendant with either of these disorders. He also acknowledged that defendant had significant mental impairments. Dr. Fithian acknowledged that defendant had been diagnosed with Asperger's disorder, an Axis I diagnosis. He believed that defendant suffered from learning disabilities, personality disabilities, and substance abuse. However, he did not diagnose defendant with any disorder and concluded that defendant committed the crime due to alcohol abuse. Thus, none of these expert witnesses defined or described a personality disorder, an adjustment disorder, or a seizure disorder during the guilt or sanity phases. Nor did any expert witness testify during either phase that defendant suffered from any of these disorders. (See People v. Larsen (2012) 205 Cal.App.4th 810, 824 ["expert medical opinion testimony is necessary to establish that a defendant suffered from a mental disease, mental defect, or mental disorder . . . because jurors cannot make such a determination from common experience"].) Thus, even if evidence of a personality disorder, attachment disorder, or seizure disorder could support a finding of mental incapacity, there was insufficient evidence in the present case to support such a finding.
In sum, defendant has failed to establish that he was deprived of his right to present a defense by the trial court's failure to instruct the jury pursuant to CALCRIM No. 3455.
C. Ineffective Assistance of Counsel
Defendant also contends that he was deprived of his right to the effective assistance of counsel when counsel failed to request an instruction on mental incapacity pursuant to CALJIC No. 4.47 at the guilt and sanity phases of trial.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has the right to the assistance of counsel. [Citations.]" (People v. Ledesma (1987) 43 Cal.3d 171, 215.) " 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966.)
In the present case, the trial court instructed the jury during the guilt phase pursuant to CALCRIM No. 3428 regarding the jury's consideration of evidence that defendant suffered from "a mental disease or defect or disorder" for the purpose of deciding whether he acted with the requisite intent or mental state and the prosecution's burden of proof. As previously discussed, since the trial was bifurcated, defense counsel did not render ineffective assistance by failing to request an instruction on mental incapacity at the guilt phase.
The jury was instructed pursuant to CALCRIM No. 3450, which sets forth the same test as CALCRIM No. 3455, during the sanity phase. Both CALJIC No. 4.47 and CALCRIM No. 3450 require a finding that the defendant's mental condition made him incapable of knowing or understanding the nature and quality of his act or incapable of knowing or understanding that his act was morally or legally wrong. Defendant argues, however, that the correct definition of incapacity is set forth only in CALJIC No. 4.47. He points out that CALCRIM No. 3455 defines incapacity as "a mental disease or defect" while CALJIC No. 4.47 states that "[m]ental incapacity is an extreme mental deficiency. This mental deficiency often is congenital, meaning acquired before birth, or is caused by an arrested development of the brain caused by disease or injury in early childhood."
CALJIC No. 4.47 states: "Mental incapacity is an extreme mental deficiency. This mental deficiency often is congenital, meaning acquired before birth, or is caused by an arrested development of the brain caused by disease or injury in early childhood. [The deficiency may also be caused by brain damage from disease or injury sustained in later years.] [¶] A mentally incapacitated person lacks capacity to commit crime, and therefore is not responsible for what would otherwise be criminal conduct. A mentally incapacitated person suffers from mental deficiency and the degree of mental impairment is such that at the time of the commission of the alleged crime, [he] [she] is incapable, by reason of that deficiency, of: [¶] 1. Knowing the nature and quality of [his] [her] act; or [¶] 2. Understanding the nature and quality of [his] [her] act; or [¶] 3. Distinguishing what is legally right from what is legally wrong; or [¶] 4. Distinguishing what is morally right from what is morally wrong. [¶] [Conduct that is morally wrong is conduct that violates generally accepted standards of moral obligation. Legal wrongfulness and moral wrongfulness are often equivalent but that is not always the case.] [¶] Evidence has been received which may tend to show that the defendant suffered from mental incapacity. If after a consideration of all the evidence, you have a reasonable doubt that the defendant had the legal capacity to commit crime, the defendant must be found not guilty." --------
Here, evidence of defendant's mental incapacity was not strong. Defendant had some neurological impairment, experienced developmental delays, had difficulties with abstract reasoning, and attended special education classes in high school. However, he took one or two classes at the University of New Mexico and attended a community college where he had a B average during his first two semesters. His IQ fell "solidly within the average range." Moreover, he was capable of explaining to the officer that killing someone was acceptable during a war or in self-defense. Based on this record, defense counsel could have reasonably concluded that a definition that did not include "extreme mental deficiency" would result in a more favorable result for her client. Thus, defendant has failed to establish that counsel's performance was deficient.
D. Modification of CALCRIM No. 3450
Defendant also contends that he was denied federal due process by the trial court's refusal to modify the jury instruction defining legal insanity (CALCRIM No. 3450).
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.] ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
The second element of CALCRIM No. 3450 provides: "Because of that disease or defect, he was incapable of knowing or understanding the nature and quality of his act or was incapable of knowing or understanding that the act was morally or legally wrong." Defendant sought to modify the instruction by inserting "did not know or understand" for the two instances of "was incapable of knowing or understanding." Alternatively, he proposed to add language: "A defendant is incapable of knowing or understanding the nature and quality of his act, or that his act was morally or legally wrong if, he had a mental disease or defect when he committed the crime and, as a result of that mental disease or defect, he did not know or understand the nature and quality of his act, or did not know or understand that his act was morally or legally wrong."
Defendant argues that CALCRIM No. 3450, without modification, does not accurately set forth the M'Naghten test, because the "M'Naghten [test] requires that the accused prove a lack of knowledge or understanding, not capacity."
The trial court did not err in refusing the modification to CALCRIM No. 3450. The Legislature has the authority to determine the legal definition of a defense. (People v. Lynn (1984) 159 Cal.App.3d 715, 732-733.) Section 25, subdivision (b) states in relevant part that the trier of fact may render a verdict of not guilty by reason of insanity only if the accused proves that "he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense." Moreover, the California Supreme Court has included the challenged language in its definition of insanity. (People v. Hernandez (2000) 22 Cal.4th 512, 520-521 ["Insanity, under California law, means that at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong. [Citations.]" (Italics added.)]; see also People v. Mills (2012) 55 Cal.4th 663, 671 ["Under the M'Naghten test, insanity is established if the defendant was incapable of knowing or understanding the nature and quality of the criminal act, or of distinguishing right from wrong. [Citations.]" (Italics added.].) Accordingly, we reject defendant's contention.
Defendant next contends that the trial court erred in refusing to modify CALCRIM No. 3450 with the bracketed phrases: "You may consider any evidence that the defendant had a mental disease or defect before[, during or after] the commission of the crime. If you are satisfied that he had a mental defect before[, during or after] he committed the crime, you may conclude that he suffered from that same condition when he committed the crime." Defendant contends that CALCRIM No. 3450 improperly limited the jury to considering evidence of a mental disease or defect before commission of the crime.
"It is well settled that evidence as to a defendant's acts, conduct, declarations and appearance, both before and after the time in question as well as at the particular time as to which the issue of defendant's sanity has been raised may be admitted to aid the trier of fact in determining the issue presented by a plea of insanity. [Citations.]" (People v. Dennis (1960) 177 Cal.App.2d 655, 660-661.)
We disagree with defendant's interpretation of CALCRIM No. 3450. First, the instruction is permissive and informs the jury that it "may" consider evidence of a defendant's mental disease or defect before the commission of the crime. It does not preclude the jury from consideration of evidence of a defendant's conduct and statements during and after the commission of the crime in determining his sanity. Second, other portions of the instruction indicated to the jury that it could consider all relevant evidence of insanity. The jury was instructed: "You may find that at times the Defendant was legally sane, and at other times was legally insane. You must determine whether he was legally insane when he committed the crime." Thus, the instruction informed the jury that it could consider evidence that defendant was legally insane "at other times," including after the crime, to infer that he was insane when he committed the crime. Moreover, the jury was also instructed that "[i]f after considering all the evidence, all 12 of you conclude that the Defendant has proved that it is more likely than not that he was legally insane when he committed the crime, you must return a verdict of not guilty by reason of insanity." (See CALCRIM No. 3450, italics added.) Thus, the jury was instructed that it could consider all the evidence presented at trial. As the parties agree, most of the evidence of defendant's sanity and insanity involved his behavior and statements that were made after committing the crime. In viewing the instruction as a whole and based on this record, it is not reasonably likely that the jury applied the instruction in an erroneous manner. (People v. Houston (2012) 54 Cal.4th 1186, 1229.)
Defendant argues that the trial court's denial of his request to exclude reference to possible outpatient treatment was error.
The challenged portion of CALCRIM No. 3450 reads: "If you find the Defendant was legally insane at the time of his crime, he will not be released from custody until the Court finds he qualifies for release under California law. Until that time, he will remain in a mental hospital or outpatient treatment program, if appropriate. He may not generally be kept in a mental hospital or outpatient program longer than the maximum sentence available for his crime. Your job is only to decide whether the Defendant was legally sane or insane at the time of the crime. You must not speculate as to whether he is currently sane or may be found sane in the future. [¶] You must not let any consideration about where the defendant may be confined, or for how long, affect your decision in any way." (Italics added.)
Defendant argues that the reference to outpatient treatment "focused the jury on the penalty, rather than whether [defendant] met the legal requirements for insanity." He also claims that CALCRIM No. 3450 "calls to mind the type of prohibited commentary that a defendant found insane could end up on the streets."
When read in context, the challenged paragraph of CALCRIM No. 3450 protects the defendant and addresses any possible fears of the jurors that the defendant would be released into the community after he is found insane. This instruction informs the jury: if the defendant is found insane, he will not be released from custody until a court finds that he qualifies for release under California law; until that time, he will remain in the appropriate treatment facility; and he will remain in that facility for the maximum term available for his convicted offenses. The reference to an outpatient program is qualified by the words "if appropriate." More importantly, CALCRIM No. 3450 directs the jury not to consider "whether the defendant may be confined, or for how long." We presume that jurors follow the trial court's instructions. (People v. McKinnon (2011) 52 Cal.4th 610, 670.) Thus, we reject defendant's argument.
E. Cumulative Error
Defendant contends that the cumulative impact of evidentiary and instructional errors denied him the right to a fair trial. Since we have not found multiple errors, there is no prejudice to cumulate. (People v. Lee (2011) 51 Cal.4th 620, 657.)
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.