Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR033443S
Marchiano, P.J.
I.
INTRODUCTION
Defendant Thomas Arthur Applegate (Applegate) appeals from his conviction of second degree murder and attempted murder in the “second degree.” He argues that, because second degree attempted murder is not a crime in California, his conviction must be reversed. Applegate also asserts that the court erred in instructing the jury with CALCRIM No. 3450 at the sanity phase of his trial. We affirm.
II.
PROCEDURAL BACKGROUND
Applegate was charged by information with the murder of Joey Church (count one), the attempted murder of Ross Condemni (count two), and assault with a firearm on Condemni (count three) (Pen. Code, §§ 187, subd. (a); 664; 245, subd. (a)(2).) Counts one and two included allegations that in the commission of those crimes, Applegate intentionally discharged a firearm, causing great bodily injury or death. (§ 12022.53, subd. (d).) Count three included the allegations that Applegate personally used a firearm and personally inflicted great bodily injury. (§§ 1203.06, subd. (a)(1); 12022.5, subd. (a)(1); 12022.7.)
All further undesignated statutory references are to the Penal Code.
Applegate pleaded not guilty and denied the special allegations on January 5, 2005. On June 14, 2006, he entered a “dual plea” of not guilty/not guilty by reason of insanity.
Following the close of evidence on June 5, 2007, the court granted the People’s motion to amend count two to add the allegation that the attempted murder was deliberate and premeditated under section 664. On June 12, 2007, the court stated the jury was “hopelessly deadlocked.” The prosecutor moved to “strike the first-degree allegations” as to counts one and two. The court granted the motion.
The jury found Applegate guilty of second degree murder, and found true the enhancing allegation. The jury also found Applegate guilty of attempted murder “in the second-degree,” and found true the enhancing allegation. The jury found Applegate not guilty of aggravated assault. Following the sanity phase of the trial, the jury found Applegate was sane at the time he committed the crimes.
The court denied Applegate’s motion for new trial. The court sentenced him to an indeterminate term of 15 years to life on the murder conviction, plus 25 years to life for the enhancement of personally and intentionally discharging a firearm resulting in death. The court imposed a consecutive sentence of seven years for the attempted murder conviction, plus 25 years to life for the enhancement as to that count. The court sentenced Applegate to “a total consecutive term of 7 years plus 65 years to life.” This timely appeal followed.
III.
FACTUAL BACKGROUND
We set forth the facts to the extent necessary to address the issues raised on appeal. On May 1, 2003, Applegate told his employer he was going to Mexico for four days. On May 3, 2003, he drove his Jeep from his home in Paso Robles to the airport in San Luis Obispo. He rented a gold Kia automobile, using his father’s home address rather than his own.
On May 4, 2003, Applegate checked into a motel in Ukiah. He telephoned his girlfriend’s brother, Leon Osburn (Leon) and Leon’s wife, Jessie Osburn (Jessie), who lived in Ukiah. Applegate asked if they would like to go with him to look at some property. They agreed, and met Applegate at the motel. Leon saw the butt of a handgun on the nightstand in Applegate’s motel room.
Because a number of individuals referenced in this opinion share the same last name, we refer to them by their first names, where appropriate, for clarity. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn.1.)
Leon and Jessie then went to their home, and Applegate met them there. Applegate told Leon: “I got a new prescription. You ought to try it.” He then pulled out “a bag of speed,” also known as “meth[amphetamine].” Leon testified: “[Y]ou give me a bag, I’ll do it. I poured it out.” Each man snorted one line of the drug. Leon testified that in his experience, when a person is on a “meth run,” meaning taking methamphetamine over a period of time, he or she “think[s] a lot of crazy stuff.”
After approximately 15 minutes, Applegate, Leon and Jessie got into Applegate’s rental car and he drove north on Highway 101. By the time the group stopped in Willits, Leon no longer felt the effects of the methamphetamine. The group then continued their journey north on Highway 101. They stopped in Leggett for two to three hours because the highway was blocked by a mudslide. Leon testified that Applegate started behaving strangely on the way to Leggett. During their stop in Leggett, Applegate engaged a stranger in an emotional conversation about forgiveness and religion. Jessie testified Applegate “wasn’t himself,” and “wasn’t acting like... [she had] seen him before.”
Leon did not know exactly where they were going until they arrived in Bridgeville, a small town with only four inhabited homes. Applegate had learned on the Internet that the entire town of Bridgeville was for sale, and he wanted to buy it. He parked the car across the street from what was later identified as Joey Church’s home. Applegate approached the house, and spoke with Carrie Erickson, Church’s girlfriend. He asked about the town being for sale. Erickson testified that Applegate “freaked [her] out,” and “didn’t seem like he was right in the head.”
Applegate returned to the car, and the group drove away. Applegate said he wanted to go back, saying he “needed to help them.” Leon told him he and Jessie would get out and get their son to give them a ride home, because Leon had to be at work the next morning. They called their son, then walked about five miles along the road until their son picked them up. He had driven about 120 miles to do so. Leon and Jessie both testified they were not apprehensive about Applegate, just tired and wanted to go home. Leon had not seen Applegate take any more methamphetamine that day.
Around 8:00 p.m., Applegate returned to the Church home. Church’s neighbor, Ross Condemni, as well as Erickson, Church, and his seven-year-old daughter and 10-year-old son, had gathered to watch The Simpsons on television. Applegate knocked on the door, and Church and Erickson said to come in. Applegate asked if the house was for sale. Church responded it was not, but that the town was.
Applegate pulled out a gun from a holster inside his clothing. He said, “Nobody move. This is a....” Condemni testified he thought the last word was “arrest” or “rip-off.” Applegate told the children to go to the other room. Then he “started shooting.” The two children and Erickson ran to a bedroom and climbed out the window, taking Church’s.22 caliber rifle for protection. Church’s daughter saw Applegate shoot Church. Applegate shot Condemni in the left thigh. Church died as a result of the gunshot wounds.
At about 2:00 or 3:00 a.m., Applegate entered Leon and Jessie’s home in Ukiah without knocking. Their son was there watching television. Applegate appeared scared and confused, and was “all strung out, white as a ghost.” When Leon got up the next morning at about 6:30 or 7:00 a.m., Applegate was not there.
On May 6, 2003, Leon called police after learning on the Internet about the murder in Bridgeville. The description of the suspect and car matched Applegate and the Kia rental car. Condemni and Church’s minor children identified a photograph of Applegate as the person who had shot Church.
Police found a.44 magnum Colt Anaconda revolver at the home of Applegate’s father, who testified that he took it from Applegate’s home on May 7, 2003. Ballistics tests indicated the bullets fired at the Church home were from this gun.
At the sanity phase of the trial, Applegate’s mother testified he had suffered head injuries as a young child, and had emotional problems and signs of learning disabilities as a youth. He was employed in the oil industry for about 17 years. During that employment, he was involved in an explosion in about 1991. As far as his mother knew, he was never hospitalized for his childhood head injuries or after the explosion. Applegate began using other drugs in addition to marijuana in 1990 or 1991.
Dr. William Pierce, a clinical psychologist, examined Applegate, conducted tests, and reviewed his records. He diagnosed Applegate with dementia, head trauma, amphetamine-induced psychosis and posttraumatic stress disorder. He opined that Applegate’s condition, combined with methamphetamine use, rendered him incapable of distinguishing between right and wrong at the time of the crimes.
Dr. Samuel Benson, a psychiatrist, also examined Applegate. A scan of Applegate’s brain revealed “scalloping,” a condition caused by long-term exposure to a toxin. Dr. Benson believed the scalloping was caused by Applegate’s long-term methamphetamine use. He opined that Applegate met the legal definition of insanity, because he was “psychotic at the time [of the incident], responding to whatever the internal stimuli, the voices, were telling him to do.” He believed that the psychosis was caused by the effect of the methamphetamine on Applegate’s damaged brain. Applegate’s symptoms at the time of the killings were not consistent with a person who had consumed only one line of methamphetamine, which in a normal person would not cause psychosis.
Dr. Robert Soper, a psychiatrist, disagreed with Drs. Pierce and Benson, testifying that he believed Applegate was legally sane at the time he committed the crimes. Dr. Soper testified that Applegate did “something crazy like this virtually out of the blue... [due to] methamphetamine.”
IV.
DISCUSSION
A. “Second-Degree” Attempted Murder
Applegate argues that he was erroneously convicted of attempted murder “in the second degree” because no such crime exists. He is correct that attempted murder is no longer divided into degrees. (People v. Bright (1996) 12 Cal.4th 652, 669, overruled on other grounds in People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.) Applegate maintains, however, that the jury’s verdict demonstrates the legal “theory of guilt presented to the jury [was]... inadequate,” requiring reversal.
Applegate asserts that the jury found him guilty of attempted murder in the second degree based on a theory of guilt that “ ‘fails to come within the statutory definition of the crime.’ ” “ ‘[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citations.]” (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith); see also People v. Swain (1996) 12 Cal.4th 593, 605.) “Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’ ” (Smith, at p. 739, quoting People v. Saille (1991) 54 Cal.3d 1103, 1114.) “ ‘The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. [Citations.]’ ” (Smith, at p. 739.)
The court here did not instruct the jury on “first degree” or “second degree” attempted murder. Instead, it properly instructed the jury on attempted murder and on the allegation of willfulness, deliberation and premeditation under section 664, subdivision (a). “To prove that the defendant is guilty of attempted murder, the People must prove that, one, the defendant took direct but ineffective steps toward killing another person; and, two, the defendant intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation. It shows that a person is putting his or her plan into action.... [¶]... [¶] If you find the defendant guilty of attempted murder under count two, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully and with deliberation and premeditation.... [¶]... [¶] An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant killed a person because he acted in imperfect defense of another.” The court further instructed the jury that “[a]ttempted murder without premeditation and deliberation and attempted voluntary manslaughter are lesser crimes of attempted murder charged in count two.”
Applegate does not claim that the jury was misinstructed. Instead, he asserts that his conviction must be reversed because it is impossible to tell whether the jury convicted him of attempted murder under a “legally adequate theory.” He urges that “the jury failed to unanimously agree that [he] acted deliberately which is a required element for attempted murder.” This element, however, is not necessarily required. The mental state required for attempted murder is intent to kill. (Smith, supra, 37 Cal.4th at p. 739.) Intent, however, does not require deliberation. (See People v. Thomas (1945) 25 Cal.2d 880, 898.) “ ‘A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of considerations in forming a course of action....’ ” (People v. Harris (2008) 43 Cal.4th 1269, 1286, quoting People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
Contrary to Applegate’s claim, the jury’s verdict of attempted murder in the second degree was not based on a legally inadequate theory, but on an inadequate verdict form. Once the court advised the jury that the “first-degree charges have been dismissed and... you are to no longer consider the issue of first-degree murder nor attempted first-degree murder,” the jury’s only options on the verdict form were attempted murder in the second degree or attempted manslaughter. “[T]echnical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice.” (People v. Webster (1991) 54 Cal.3d 411, 447, citing §§ 1258, 1404; People v. Camacho (2009) 171 Cal.App.4th 1269, 1272-1273.)
The jury was properly instructed on attempted murder, including the critical instruction that an intent to kill is required, and Applegate does not contend otherwise. Given the option between attempted murder “in the second degree” and attempted voluntary manslaughter, the jury plainly applied the instructions and rejected the imperfect defense of another theory. The court’s dismissal of the allegation that the attempted murder was premeditated and deliberate, in the form of dismissal of the “first-degree charges,” did not remove a “required element for attempted murder” from the jury. Given the accurate instructions to the jury that attempted murder required an intent to kill, the theory of guilt presented to the jury was not legally inadequate.
B. CALCRIM No. 3450
Applegate asserts that instructing the jury with CALCRIM No. 3450 at the sanity phase of his trial violated his constitutional rights to due process and trial by jury. He specifically objects to the following sentence from CALCRIM No. 3450: “If you conclude that at times the defendant was legally sane and at other times the defendant was legally insane, you must assume that he was legally sane when he committed the crimes.”
CALCRIM No. 3450 was amended in 2008, and no longer contains that sentence.
“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” (People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on another ground in People v. Reyes (1998) 19 Cal.4th 743, 756.) “In evaluating a claim that the jury could have misconstrued an instruction, the test on review is ‘ “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” ’ ” (People v. Thomas (2007) 156 Cal.App.4th 304, 310 (Thomas), quoting People v. Raley (1992) 2 Cal.4th 870, 901.)
Applegate maintains that because “virtually every mentally ill person has some lucid moments... this instruction effectively directed a verdict in the sanity trial that [he] was sane at the time of the offense.” The court in Thomas considered the same contention. There, the defendant likewise claimed that “because virtually all mentally ill persons have lucid moments, the [portion of CALCRIM No. 3450] effectively directed a finding of sanity.” (Thomas, supra, 156 Cal.App.4th 304 at p. 309.) The court held: “When viewed in isolation, we agree... the highlighted portion of the instruction could be misleading. The point of the instruction is to inform the jury the burden is on the defendant to prove he was insane at the time of the offenses. This does not change after evidence has been presented that the defendant was sane or insane at different times, including the time of the offense. Therefore, no good can come from informing the jury that, once evidence has been presented that the defendant was sane at times and insane at other times, it must assume he was sane at the time of the offenses. This assumption existed before evidence was presented. Thus, there is the risk the jury might read the highlighted portion to mean the assumption is irrebuttable. [¶] Nevertheless, when the instruction is viewed as a whole, we do not find a reasonable juror would have been misled.” (Id. at p. 310.)
Here, the court instructed regarding insanity, in pertinent part, as follows: “The defendant must prove that it is more likely than not that he was legally insane when he committed the crimes. [¶] The defendant was legally insane if, one, when he committed the crimes he had a mental disease or defect; and, two, because of that disease or defect, he did not know or understand the nature and quality of his act, or did not know or understand his act was morally or legally wrong. None of the following qualify as mental disease or defect for the purposes of an insanity defense: [¶] Personality disorder, adjustment disorder, seizure disorder, or abnormality [sic] personality character made apparent only by a series of criminal or antisocial acts. [¶] If the defendant suffered from a settled mental disease or defect caused by long-term use of drugs or intoxicants, that long-settled mental disease or defect is one that remains after the effect of the drugs or intoxicants has worn off. [¶] You may consider any evidence that the defendant had a mental disease or defect before the commission of the crimes. If you are satisfied that he had a mental disease or defect before he committed the crimes, you may conclude that he suffered from that same condition when he committed the crimes. [¶] You must decide whether that mental disease or defect constitutes legal insanity.... [¶]...[¶] You must not speculate as to whether he is currently sane or may be found sane in the future.... [¶] If you conclude that at times the defendant was legally sane and at other times the defendant was legally insane, you must assume that he was legally sane when he committed the crimes. [¶] If after considering all the evidence the twelve of you conclude the defendant has proved that it is more likely than not that he was legally insane when he committed the crimes, you must return a verdict of not guilty by reason of insanity. Regardless of its duration, legal insanity which existed at the time of the commission of the crime is a defense to the crime. [¶] When the evidence shows that at times the defendant was legally insane and at other times he was legally sane, he has the burden of proving by a preponderance of the evidence that he was legally insane at the time of the commission of the crime.”
While the court instructed the jury with the portion of CALCRIM No. 3450 that the Thomas court found “could be misleading” in isolation (Thomas, supra, 156 Cal.App.4th 304 at p. 310), the parties do not dispute that the remaining instructions accurately stated the law on insanity. The instructions made clear that “[r]egardless of its duration, legal insanity which existed at the time of the commission of the crime is a defense to the crime.” Considering the charge to the jury in its entirety, we conclude that no reasonable juror would have misconstrued the instructions.
V.
DISPOSITION
The abstract of judgment is ordered to be corrected to indicate that Applegate was convicted of attempted murder, not “attempted murder, 2nd degree.” In all other respects, the judgment is affirmed.
We concur: Margulies, J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.