Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 03WF3225, William R. Froeberg, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
A jury found defendant Jamie Allen Balint guilty of first degree murder and found true three deadly weapon enhancements. In a bifurcated trial, the jury found defendant was sane when he committed the crime. The trial court denied his motion to modify the verdict of sanity or, in the alternative, to grant his motion for a new trial. The court sentenced defendant to an indeterminate term of 25 years to life and three consecutive one-year weapon use enhancements.
Defendant appeals asserting: (1) the court should have instructed sua sponte with CALCRIM No. 627; (2) the court’s modified version of CALCRIM No. 3450 was error; (3) CALCRIM No. 3450 is flawed; (4) the court erred in instructing with a portion of CALCRIM No. 3450 dealing with intoxication; (5) prosecutorial misconduct; (6) the court should have modified the verdict or granted a new trial; and (7) he proved he was not sane when he committed the murder. We reviewed each of these contentions and, for the reasons set forth below, reject them. We therefore affirm the judgment.
FACTS
Defendant lived with his mother. He was treated for mental illness throughout most of his life. On the day of the murder, defendant’s mother spoke with his brother Timothy and told him that she needed to get defendant back into the hospital. Defendant was aware of this. Early that evening, Timothy arrived at the house and found all the lights were off; no one answered when he knocked on the door and windows. Timothy then unlocked the door and tried to enter; defendant pushed at the door and told him to go away. After calling the house and being told by defendant that their mother was gone, and after calling another brother, Justin, Timothy went to the police and asked them to check his mother’s house.
Thereafter, a neighbor, Catherine Brouwers, saw defendant in an alley behind her house. Defendant, who appeared to be agitated, told her he was looking for his brother. Brouwers, who had experience with drug addicts, asked defendant if he was on drugs; defendant stated that he was and that he had taken too much Klonopin. Defendant told Brouwers that he was going to jail for “demons cleansing.”
When the police arrived, there was no response to their knock on the door but the door swung open and an officer saw two legs sticking out of the kitchen area of the house. Further investigation found defendant’s mother on the kitchen floor, a puddle of blood behind her neck, paper towels covering her head, and a blanket wrapped around her body. After removing the coverings, the officers found multiple perforations in the victim’s blouse, and a scissors blade protruded from her chest. Officer Brian Seitz found a bent vegetable peeler and the handle of a pair of scissors on the living room floor near a pool of blood; both items were bloody. The officers also found pieces of a barbell on the floor of the kitchen. The victim died from blood loss.
Officers interviewed defendant at the police station. Defendant told the officers he had killed his mother because she was going to send him back to the mental hospital and he did not want to go. While he was hidden inside a closet so that his mother would not know he was home, he had overheard his mother talking on the telephone about returning him to the hospital. Defendant described the process he used to kill his mother. After the killing, he changed his clothes and washed blood from his hands. Throughout the interview, defendant referred to his mother as a “replica” or a “demon.” Timothy testified that at various times defendant had referred to their mother as a “clone” or “satan”; at other times, he called her “mom” and had sent her a mother’s day card earlier in the year. Timothy testified that defendant had a history of mental illness and believed his mother had been replaced by a “replica” or a “clone.” He stated that defendant seemed better when first released from the hospital but his condition had started to deteriorate about three months before the murder.
We discuss the remaining sanity evidence in our discussion below.
DISCUSSION
1. The trial court was not required to instruct with CALCRIM No. 627.
Defendant contends that, during the guilt phase of the trial, the trial court had a sua sponte duty to instruct with CALCRIM No. 627. That instruction reads:
“A hallucination is a perception not based on objective reality. In other words, a person has a hallucination when that person believes that he or she is seeing or hearing [or otherwise perceiving] something that is not actually present or happening.
“You may consider evidence of hallucinations, if any, in deciding whether the defendant acted with deliberation and premeditation.
“The People have the burden of proving beyond a reasonable doubt that the defendant acted with deliberation and premeditation. If the People have not met this burden, you must find the defendant not guilty of first degree murder.”
The court has a sua sponte duty to give defense instructions supported by substantial evidence and consistent with the defendant’s theory of the case. (People v. Barton (1995) 12 Cal.4th 186, 195; People v. Baker (1999) 74 Cal.App.4th 243, 252.) “[E]vidence of a hallucination — a perception with no objective reality — is inadmissible to negate malice so as to mitigate murder to voluntary manslaughter but is admissible to negate deliberation and premeditation so as to reduce first degree murder to second degree murder.” (People v. Padilla (2002) 103 Cal.App.4th 675, 677.)
In arguing that the instruction should have been given, defendant relies on the evidence indicating that he believed his mother to have been a “replica” and a “demon.” But there is no evidence that this was the reason defendant killed her. Defendant told the police he killed his mother because she was going to return him to the hospital, not because she was a “replica” or a “demon.” And, even had there been evidence to this effect, this is not the type of hallucination to which the instruction applies. In People v. Padilla, supra, 103 Cal.App.4th 675 the court held that evidence of hallucination should have been admitted because it could have negated premeditation and thus reduced the murder from first to second degree. (Id. at p. 679.) But here there was nothing to suggest that defendant murdered his mother in the heat of passion, without premeditation and deliberation. As the Attorney General points out, “the defense never disputed that [defendant] planned the killing. Rather, the defense was that [defendant] did not have the necessary specific intent because he intended to kill a ‘replica,’ not a human being.” Thus for the court to have instructed with CALCRIM No. 627 would have been contrary to the defense.
Defendant counters by arguing that “the fact that [he] did not want to return to the hospital was part and parcel of his belief that his mother was an emissary of the devil, as were the people who worked at the hospital. [Defendant’s] hallucination was an entire belief system which included the mental hospital staff as well as his mother; he did not want to return to the mental hospital because the devil-worshippers who staffed the hospital would medicate him in order to steal his soul.” In the first place, defendant failed to supply record references for these statements and we may thus ignore them. (People v. Doughtery (1982) 138 Cal.App.3d 278, 282.) But, assuming the record supports this statement, we still disagree that this required the giving of CALCRIM No. 627. The murder was committed because defendant did not want to return to the hospital. His reasons for not wanting to return there do not detract from this fact.
2. The trial court did not err in modifying CALCRIM No. 3450.
CALCRIM No. 3450 generally defines insanity. The trial court modified the CALCRIM No. 3450 instruction by inserting the following sentence: “Whether the defendant knew or understood that his act was morally wrong is determined by referring to generally accepted moral standards and not those peculiar to the defendant.” Defendant’s lawyer had requested that the modification read: “A defendant does not understand that his act was morally wrong when he does not believe that his act violates generally accepted standards of moral obligation based on the facts he believes to be true. Religious beliefs may be the source of generally accepted standards of moral obligation.” Defendant now argues that the court’s modification given constitutes error. We disagree.
The first quoted sentence was given immediately after the portion of the instruction that provides that, in addition to the requirement defendant prove the existence of a mental disease or defect, he must prove “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.” The additional sentence as given makes it clear that an objective moral standard rather than a subjective standard is to be applied; defendant’s alternative paragraph adds a subjective consideration. The law is clear that it is the first, and not the latter, that is to be applied.
As the court noted in People v. Coddington (2000) 23 Cal.4th 529, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 “The morality contemplated [by the statute defining the insanity defense] is, as the prosecutor argued here, not simply the individual’s belief in what conduct is or is not good. While it need not reflect the principles of a recognized religion and does not demand belief in a God or other supreme being, it does require a sincerely held belief grounded in generally accepted ethical or moral principles derived from an external source. ‘[M]oral obligation in the context of the insanity defense means generally accepted moral standards and not those standards peculiar to the accused. [Citation.]’” (Id. at p. 608.)
The court’s modification of the instruction was a succinct and correct statement of the law.
3. CALCRIM No. 3450 is a correct statement of the law.
Defendant contends that CALCRIM No. 3450 is “flawed because it requires the jury to conclusively presume that a defendant who was ‘at times legally sane’ and ‘at other times legally insane,’ was legally sane at the time of the commission of the offense.” (Bold and capitalization omitted.) In making this argument, defendant relies solely on the portion of the instruction that reads, “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 crime.” We acknowledge that the statement may be improved upon. But it should not be read in isolation from the remainder of the instruction. The same argument was made and rejected in People v. Thomas (2007) 156 Cal.App.4th 304, 308-311. We adopt the reasoning of that court: “[T]he thrust of CALCRIM No. 3450 is to inform the jury that the burden is on the defendant to prove he was insane at the time of the offenses.” (Id. at p 310.)
4. The portion of the instruction dealing with intoxication was harmless error.
The trial court, over defendant’s objection, instructed the jury with the portion of CALCRIM No. 3450 that reads:
“Special rules apply to an insanity defense involving drugs or alcohol. Addiction to or abuse of drugs or intoxicants, by itself, does not qualify as legal insanity. This is true even if the intoxicants cause organic brain damage or a settled mental disease or defect that lasts after the immediate effects of the intoxicants have worn off. Likewise, a temporary mental condition caused by the recent use of drugs or intoxicants is not legal insanity.
“If the defendant suffered from a settled mental disease or defect caused by the long-term use of drugs or intoxicants, that settled mental disease or defect, combined with another mental disease or defect may qualify as legal insanity. A settled mental disease or defect is one that remains after the effect of the drugs or intoxicants has worn off.”
Defendant argues that, because use of intoxicants was not the only ground for his insanity defense, it was improper to instruct with this portion of the insanity instruction. He relies primarily on People v. Robinson (1999) 72 Cal.App.4th 421, where the court stated that Penal Code section 25.5 “erects an absolute bar prohibiting use of one’s voluntary ingestion of intoxicants as the sole basis for an insanity defense, regardless whether the substances caused organic damage or a settled mental defect or disorder which persists after the immediate effects of the intoxicant have worn off. In other words, if an alcoholic or drug addict attempts to use his problem as an escape hatch, he will find that section 25.5 has shut and bolted the opening.” (Id. at p. 427.)
Robinson held that, where a defendant “did not present any evidence showing that his alleged insanity arose solely from his ingestion of intoxicants and he did not rely on this defense below,” the instruction should not be given. (People v. Robinson, supra, 72 Cal.App.4th at p. 428.) But the case also noted “that this type of instructional error does not require reversal unless it is affirmatively shown that defendant was prejudiced thereby and that there is a reasonable probability that, absent the error, the jury would have returned a verdict more favorable to the defendant. [Citations.]” (Id. at p. 429.) We cannot conclude the challenged portion of the instruction resulted in such a miscarriage of justice. As defendant points out, there was evidence of defendant’s use of illicit drugs. And the prosecutor called the jury’s attention to this instruction during closing argument. But the very fact that defendant did not contend that drug use was the cause of his mental condition, leads us to conclude that the jury would have disregarded this portion of the instruction.
5. The trial court dealt adequately with any prosecutorial misconduct.
Defendant cites several instances of what he contends was prosecutorial misconduct. His first objection is to the prosecutor’s use of the term “butcher[ed],” arguing that this refers to physical dismemberment. When the prosecutor used the term, the court sustained defendant’s objection and the prosecutor agreed to substitute the word “kill[ed].” When the prosecutor repeated the word later in his closing argument, the court again sustained defendant’s objection and instructed the jury to disregard it. Later on, the prosecutor himself asks the jury to disregard his use of the word “butchered.” Although the use of the term was less than judicious, the objection and instructions to the jury to disregard it were sufficient to cure the offense.
Other less than judicious comments by the prosecutor were similarly dealt with. When the prosecutor stated that “legal insanity is very, very, very rare,” the objection was sustained and the jury was ordered to disregard the comment. Finally, prosecutor’s referring to defendant’s drug use was proper; there was evidence defendant used illicit drugs before the attack on his mother.
6. Substantial evidence supported the finding of legal sanity.
It is undisputed that defendant suffered from mental illness. But that is not the test of legal insanity as a defense to a criminal charge. The test is whether defendant was “incapable of knowing or understanding the nature and quality of his . . . act [or] of distinguishing right from wrong at the time of the commission of the offense.” (Pen. Code, § 25, subd. (b) as modified by People v. Skinner (1985) 39 Cal.3d 765, 777, holding that the conjunctive between “her act” and “of distinguishing” should be read as the disjunctive “or.”) In arguing that he “proved by a preponderance of the evidence that he was not sane when he committed the [murders]” (bold and capitalization omitted), defendant asks us to reweigh the evidence. Not properly our task. If after reviewing the whole record in the light most favorable to the judgment, we find substantial evidence in support of the judgment, we must affirm. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
We need not here recite the many instances of defendant’s bizarre behavior and statements. Two experts testified for defendant and diagnosed him as suffering from schizophrenia. Dr. Glenn Richmond noted that defendant had been repeatedly diagnosed as either schizophrenic or schizoaffective. Dr. Peter Farrell treated defendant in 2003 and stated that he was admitted with a diagnosis of schizophrenia.
Dr. James Missett, retained by the defense, performed a thorough review of records and interviewed defendant twice. His review of the records revealed information consistent with schizophrenia. He expressed the opinion that at the time of the murder, defendant suffered from paranoid schizophrenia. Missett stated that, among other things, because defendant had stated for months before the murder, at the time of the murder, and afterwards, that he believed his mother to have been replaced by a demon “replica,” he was legally insane at the time of the murder. He concluded that defendant had not understood the nature and quality of his act because he firmly believed “that the individual he killed was not a human being but was a replica of his mother who had previously died.” He also expressed the opinion that defendant, “as a result of a mental disease, was unable to or did not know the difference between right and wrong with respect to the killing of his mother.”
But there also is substantial evidence to support the jury’s conclusion that defendant knew and understood the nature and quality of his act and was able to distinguish right from wrong when he murdered his mother. Dr. Roberto Flores de Apodaca testified for the prosecution. He also reviewed a large volume of documents, including reports prepared by the three experts who testified for defendant. He interviewed and tested defendant on three occasions for a total of about five hours. He concluded that defendant was not malingering. Flores de Apodaca testified that schizophrenia is over-diagnosed and that defendant suffered from a borderline personality disorder rather than schizophrenia. He stated that defendant met nine of the nine criteria for this condition, explained each of them, and demonstrated how defendant’s conduct met them.
Flores de Apodaca expressed the opinion that defendant understood that it was wrong to kill his mother. He based this conclusion, in part, on defendant’s lies after the murder. After killing her, he told his brother she was in the shower, which indicated a consciousness of guilt. Defendant also stated that he was going to jail, again indicating a knowledge of the wrongness of his act. Similarly, his statement to the police that he was going to prison for the rest of his life. Earlier on the day of the murder, defendant had engaged in a confrontation with his mother while the two were outside a Starbucks; Flores de Apodaca concluded that defendant having waited until they were at home before killing her, indicated that defendant knew his conduct was wrong.
Flores de Apodaca also stated that defendant knew and understood the nature and quality of his act. His statement to the police that he was going to prison for the rest of his life supported this conclusion because it showed defendant was aware that his murdering his mother was a serious offense. Further, defendant did not kill his mother because he thought she was a replica but because he did not want to go back to the hospital.
7. The court properly denied the new trial motion.
After the trial, defendant’s lawyer conducted further research in literature recommended to him by one of the expert witnesses, Flores de Apodaca, who testified on behalf of the prosecution, and formed the opinion that he had misdiagnosed defendant. Arguing that this was newly discovered evidence, he moved to modify the verdict or, in the alternative, to grant a new sanity trial. The trial court denied the motion and he asserts in his appeal that this was error. We disagree.
The material discovered by counsel allegedly contradicted some of the testimony of Flores de Apodaca. Thus, had counsel been aware of it at the time of trial, he might have been able to impeach the expert witness. In denying the motion, the court noted that defendant’s lawyer effectively cross-examined the witness for several hours and failed to explain why the names of the texts relied on by the witness were not discovered before the trial. The court noted, “In any event, such reference works were not the critical point.”
As the Attorney General points out, Flores de Apodaca testified that defendant satisfied a number of criteria for schizophrenia and acknowledged that there could be honest differences of opinion. The trial court did not abuse its discretion in denying the motion. The so-called “new evidence” was not such as to make it probably that a different result would obtain if the sanity issue were tried once more.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., MOORE, J.