Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 051823-3
Marchiano, P.J.
To arrive at a just verdict, jurors have two duties to perform: first, to determine what facts have been proved from the evidence; and second, to apply the law to the facts as they determine them. (CALJIC No. 1.00 (Fall 2006 ed.).) In this case, the jurors did not have the correct law to follow to enable them to arrive at their verdict.
Defendant Jason Michael Beck (Jason) appeals from his conviction, following a jury trial, of the first degree murder of his mother, Karen Beck (Karen) using a knife. (Pen. Code, §§ 187, 12022, subd. (b)(1).) The prosecution argued two theories of first degree murder; intentional, deliberate and premeditated killing, and felony murder committed in the course of an attempted robbery or burglary. Defendant conceded the killing, but presented evidence that he suffered from a long-standing irresistible or uncontrollable impulse disorder that prevented him from actually forming the requisite intent, premeditation, and malice aforethought for first degree murder. Defendant argues that the trial court’s instruction to the jury that uncontrollable or irresistible impulse is “not a defense” without a clarifying instruction, was improper, and likely misled the jury. (CALJIC No. 4.05 (Fall 2006 ed.).) While recognizing that diminished capacity/irresistible impulse is no longer a defense, he asserts that the jury may still find “diminished actuality,” by considering evidence of his mental illness in determining if he actually formed the requisite mental state. Accordingly, defendant asserts that CALJIC No. 4.05, in the context of the entire charge to the jury, was misleading and deprived him of his core defense theory in violation of his due process rights. We agree, and reverse.
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.)
All further statutory references are to the Penal Code.
I. BACKGROUND
On September 9, 2005, Antioch Police Officer James MacNiven was dispatched to the home of Jason’s parents, John and Karen Beck, to conduct a welfare check on Karen after she failed to pick up her grandson from school. Melissa Overton, (Melissa) Karen’s daughter and Jason’s sister, made the request after she received a call from her son’s school, and was unable to reach Karen. Officer MacNiven found Karen’s body face down in a pool of blood in a dining area next to the kitchen. Her throat had been slashed, severing her carotid artery and jugular vein, and partially severing her cervical vertebrate. She had “a great number of injuries,” including lacerations, abrasions and bruising, indicating she had suffered blunt force trauma to the head and face. She also had hemorrhaging in and around her eyes, consistent with strangulation. The deep wound across her neck was the cause of death.
Unless otherwise noted, all further dates referenced are in 2005.
Contra Costa Deputy Sheriff Senior Criminalist David Stockwell collected forensic evidence from the Beck home. The door to an upstairs bedroom Karen used as an office had been forced open. Karen and John kept the room locked to prevent Jason from entering. Jason’s palm prints and fingerprints were in blood on cabinets and door and wall molding near the office. The blood was primarily Karen’s. An upholstery sample from Jason’s Jeep Cherokee contained blood that was a mixture of his and Karen’s.
Melissa called Jason in the afternoon on September 9th to tell him their mother was dead. The two of them later went to the police station to be interviewed. There, Jason told Melissa he had called their mother at 8:11 that morning because he had $20 to repay her. He also told Antioch Police Investigator Mike Franzen that his mother loaned him $20, and he had the money to repay her. He motioned to his wallet, which contained $17.
Police discovered Karen’s purse in the downstairs pantry, and learned that Karen’s Bank of America debit card was missing from her purse, as well as two checks that were not recorded in her check register. No blood stains were found on the purse, checkbook, or the pantry doors. Two purchases were made with Karen’s debit card on September 9th at a Valero gas station in Antioch. The first, at 9:13 a.m., was for store merchandise and approximately one gallon of gas, totaling $17.06. The second, made at 9:28 a.m., was for $30.18 worth of gas. The debit card had been used the previous day to make a $20.01 purchase of gasoline from the same Valero station.
Check No. 1546, dated September 8, 2005, was in Karen’s handwriting to Raley’s. Check No. 1547 was made payable to Jason for $800, and was not in Karen’s handwriting. That check was dated September 7th, but was cashed on September 9th at a Bank of America branch using Jason’s Bank of America debit card as identification. On September 9th, Jason went to his girlfriend’s office about “20 minutes before [lunch],” and gave her $700 in cash, telling her he had cashed his paycheck.
Defendant had a long history of mental and behavioral problems. He was born prematurely on September 23, 1975, and adopted when he was two months old by Karen and John. The couple’s biological daughter, Melissa, was six years old at the time. Karen learned that Jason’s birth mother received no prenatal care, but nothing else about his biological parents. Jason began counseling at eight years of age because he was urinating and defecating on himself. When he was in seventh grade, Dr. Patrick Dixon, a psychologist, diagnosed him with attention deficit hyperactivity disorder (ADHD). Dr. Dixon’s report indicated that Jason told him about his anger, inability to cope with stressful situations and “punching walls and doors.” As a teenager, he had academic and social difficulties in school. He often argued with teachers, fought with peers, and was placed in special education classes. His father testified that, beginning in his teens, Jason would hit or kick the walls and doors of the family home when he was angry. Jason did this when he did not get what he wanted, but “it could be anything” that triggered this behavior.
After graduating from a continuation high school, Jason continued living with his parents. He had a history of substance abuse, including alcohol, methamphetamine, marijuana and cocaine. He attempted to live on his own and sought employment many times, but was unsuccessful in keeping a job. His father estimated that Jason had held 30 jobs since he was 21 years old. Jason was 29 years of age at the time of his mother’s killing.
Jason never became financially self-supporting. Karen often gave him money, but John “wouldn’t give him money or . . . bail him out of everything.” John testified that Jason often stole from him and Karen, “[f]rom money to tools to anything he could hock.” Karen usually kept her purse locked in their home office so Jason could not reach it.
Jason moved out of his parents’ home for the last time four to six months before his mother’s death. Since his departure, he had little contact with his father or sister. This was the longest period he had lived on his own, and his parents were hopeful “that things were going to work.” Karen and John were planning to do some remodeling work to their home, in part to repair damage Jason had caused when he was angry. Karen had the garage door opener reprogrammed so Jason could not get in.
In July, Jason moved into an apartment in Martinez with his new girlfriend. They opened a joint checking account at Bank of America. In August, Jason purchased a Jeep Cherokee. He made a partial down payment of $100, and agreed to pay an additional $900 within two weeks and 18 payments of $225, which he failed to do. Jason had and lost at least two different jobs in July and August of 2005. He also lied to his girlfriend about working at a camper shell store.
Around the same time, Karen told relatives that “she could no longer continue giving [Jason] money. That if he couldn’t make it on his own, he was welcome to come back home, but she couldn’t keep paying his rent.” Karen had stated in the past that she would no longer loan him money, but had always relented. Karen and John had always allowed him to move back home.
The only defense witness was Fred Rosenthal M.D., an expert in forensic psychology and psychiatry. He met with Jason on three occasions, administered psychological tests, and reviewed his psychological records, including those from Dr. Jules Burstein and Dr. John Kincaid. Jason told Dr. Rosenthal that he killed his mother. He talked about the argument with his mother, “about a lot of things that she was displeased with,” including “calling it sick that he was living with this girl. They were yelling at each other.” Karen got up, and Jason recalled “hitting, but not the stabbing. . . . The next thing, he [saw] her on the floor . . . [b]leeding.” Jason reported he “was scared and fled in a Jeep . . . [and t]hrew things away, the clothes, the knife.” During his second meeting with Dr. Rosenthal, Jason told him that on the day of his mother’s death, “ ‘She said something that made [him] very mad,’ not holding a job, sick of him bumming off of her, ‘wish you were never around,’ became mean, fighting, ‘slapped me and I lost it. Don’t know why there was a knife on the table. Still don’t know why it happened.’ ” In their third interview, Jason told Dr. Rosenthal that he went to his parents’ home to return $20 his mother had loaned him. He argued with his mother about a check, and she “took a swing at him.”
The court instructed the jury that they could consider Jason’s statements to the “doctor or doctors” for the truth of the matter stated.
Dr. Rosenthal administered the Wechsler Adult Intelligence Scale test and determined that Jason had a total IQ score of 74. Dr. Rosenthal testified that a total score of 100 was considered “normal or average,” while a score of “69 or below is considered mental retardation.” An individual with an IQ score of 74 “is not retarded by definition of this test, but does have serious deficits in intellectual functioning.” Dr. Rosenthal also administered the Bender Gestalt test, the “trail-making” test, and the Rorschach test. The Bender Gestalt and trail-making tests both are used to screen for brain damage. Dr. Rosenthal found evidence of brain damage based on the results of the Bender Gestalt test, though an MRI revealed no obvious physical brain damage.
Defendant’s psychological records indicated he had “troubled relationships with women.” He described physical altercations with the mother of his child, resulting in the woman obtaining a restraining order against him. He also described an incident in which he damaged his own car in order to collect the insurance proceeds.
Dr. Rosenthal opined that Jason suffered from intermittent explosive disorder, also known as episodic dyscontrol, a recognized condition within the psychiatric community and described in the DSM-IV. He described the condition as follows. “A person is suddenly extremely angry and aggressive, sometimes with no provocation and sometimes with provocation, but over-react. What is a mild annoyance to most people, they react with incredible rage. Go through a period of rage. [¶] They can be aggressive, dangerous, destructive. And often when the episode ends they don’t always remember what they’ve done. . . . [¶] There are earmarks of an epileptic seizure. Starts suddenly and runs the course and ends. The person may be surprised and remorseful, but no control during the episode.” The DSM-IV describes associated features of intermittent explosive disorder, noting “[c]hild histories may show severe temper tantrums, impaired attention, hyperactivity and other behavioral difficulties, such as stealing and fire starting.”
The Diagnostic and Statistical Manual of Mental Disorders, (DSM-IV) prepared by the American Psychiatric Association, is an “empirically based effort to define a set of diagnostic criteria for mental disorders.” (Gordon, Old Wine in Old Bottles: California Mental Defenses at the Dawn of the 21st Century, supra, 32 Sw.U.L.Rev. 75, 76.)
Jason previously had been diagnosed with intermittent explosive disorder in 2001 by his treating physician at the East County Mental Health Center. His medical records indicated he had been prescribed Depakote, which prevents seizures and stabilizes moods, Zyprexa, also a mood stabilizer, and Zoloft, an antidepressant. Depakote and Zyprexa are both used to treat intermittent explosive disorder.
John E. Kincaid, Ph.D., a psychologist, testified in rebuttal as the prosecution’s expert witness in forensic psychology. In 1999, he had been hired by the public defender’s office to examine and test Jason regarding his mental condition in connection with arson charges. The public defender specifically asked Dr. Kincaid to address “whether [Jason] exhibits a profile consistent with pyromania or whether or not, if placed on probation with appropriate conditions, he would present a substantial risk to the community and any treatment regimen.” Dr. Kincaid reviewed the report of Dr. Jules Burstein, whom the court appointed to render an opinion in the 1999 case. He did not agree with Dr. Burstein’s opinion that Jason had “no serious mental illness.”
Dr. Kincaid noted in 1999 that Jason had a history of seizure disorder, which he believed was consistent with his premature birth, behavioral dyscontrol, ADHD, mood instability and relationship instability. He concluded at that time that Jason had developmental delays in both learning and development, adjustment disorder with mixed anxiety and depressed mood, history of ADHD, history of polysubstance abuse, and borderline personality disorder with “antisocial and dependant personality traits and schizotypal personality features.” Dr. Kincaid opined that, “[i]n a technical way,” it would not be appropriate to diagnose an individual with the symptoms he observed in Jason in 1999 with intermittent explosive disorder. He testified that “[i]in the definition of the diagnosis [in the DSM-IV], it says don’t use this diagnosis if the person also meets the criteria for the other diagnoses . . . [s]ome of which I found to be present.” “[I]f someone is behaving this way because of a borderline personality disorder and/or the attention disorder . . . you do not diagnos[e] the intermittent explosive disorder. You diagnose the more major and common disorders. That behavior [could] be a consequence of those conditions.” He explained, “I could have diagnosed intermittent explosive disorder, but I diagnosed the other things.” Dr. Kincaid concluded in 1999, and still agreed, that “notable is the unusual but striking mix of an over-controlled highly conforming individual who episodically degenerates into disorganized, . . . possibly near psychotic and irrational acting out, flashes of outwardly self-directed violence, behavior that is grossly inappropriate and markedly inept.” He informed the court in 1999 of his opinion that “under stress, there may be times that [Jason] needed hospitalization.” He “did not reach th[e] conclusion” that Jason was not guilty of the arson charges by reason of insanity.
Though the Attorney General states this was “the ultimate question,” the record does not reflect that Dr. Kincaid was asked to render an opinion on whether Jason was not guilty by reason of insanity of the arson charges.
The jury found defendant guilty of first degree murder via a general verdict, and found true the allegation that he personally used a knife, a deadly or dangerous weapon, in its commission. (§ 12022, subd. (b)(1).) The trial court sentenced him to a total term of 78 years to life.
II. DISCUSSION
A. CALJIC No. 4.05
Defendant argues that instructing the jury with CALJIC No. 4.05 that uncontrollable or irresistible impulse is “not a defense” was misleading and incomplete, depriving him of his core defense theory. Jason’s defense, sometimes termed “diminished actuality,” was that he did not actually form the requisite intent for first degree murder in light of his mental illness. Jason maintains that giving CALJIC No. 4.05 was error in the context of the instructions as a whole, causing the jurors to mistakenly believe they could not consider evidence of his intermittent explosive disorder in determining whether the prosecution had proved he had the requisite mental state for first degree murder, thereby violating his due process rights.
Jason’s trial counsel neither objected to the court’s instruction with CALJIC No. 4.05, nor requested additional clarifying instructions. Relying on Penal Code section 1259, Jason now asserts this issue was not waived because the instructions affected his substantial rights. Section 1259 provides: “The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (§ 1259.) “ ‘Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.’ ” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087, citing People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) The Attorney General does not disagree, and addresses the issue on the merits. Accordingly, we review this issue on appeal. (See People v. Rundle (2008) 43 Cal.4th 76, 149.)
The legal application of the concepts of irresistible or uncontrollable impulse and diminished capacity has undergone significant changes. The irresistible impulse/diminished capacity defense, which addressed a defendant’s “general capacity or ability to form a specific intent or harbor a mental element of an offense,” was eliminated by the Legislature in 1981 and by voter initiative in 1982. (People v. Visciotti (1992) 2 Cal.4th 1, 56; People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1450; Pen. Code, § 28, subd. (a).) Section 28 now provides: “Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged. [¶] As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse . . . .” (§ 28, subds. (a) & (b).)
In eliminating the defense of diminished capacity and irresistible impulse, the Legislature “precluded jury consideration of mental disease, defect, or disorder as evidence of a defendant’s capacity to form a requisite criminal intent, . . . it did not preclude jury consideration of mental condition in deciding whether a defendant actually formed the requisite criminal intent.” (People v. Williams (1997) 16 Cal.4th 635, 677, italics in original.) “[D]iminished actuality survives, i.e., the jury may generally consider evidence of voluntary intoxication or mental condition in deciding whether defendant actually had the required mental states for the crime.” (People v. Steele (2002) 27 Cal.4th 1230, 1253; see also Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1100 (Verdin).) While an expert may not testify as to whether the defendant actually had or did not have the required mental state for the crime charged, “[a]n expert’s opinion that a form of mental illness can lead to impulsive behavior is relevant to the existence vel non of the mental states of premeditation and deliberation . . . .” (People v. Coddington (2000) 23 Cal.4th 529, 582-583 (Coddington), overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13, and partially superseded by statute on other grounds as stated in Verdin, supra, 43 Cal.4th at p. 1107, fn. 4.) CALJIC No. 4.05 reflects the elimination of this defense, instructing: “If a person is legally sane, then it is not a defense that he committed the act of which he is accused because of an uncontrollable or irresistible impulse.”
Penal Code section 29 provides: “In the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.”
At the outset, defendant maintains that CALJIC No. 4.05 is intended to be given only at the sanity phase of a trial, not at the guilt phase. He notes that the prefatory phrase “If a person is legally sane” demonstrates that it is only applicable in the sanity phase, where the jury would be instructed on the legal definition of sanity. His claim is bolstered by CALJIC No. 4.05’s placement in the section of the instructions titled “Insanity.” The California Supreme Court has explained that, because “irresistible impulse no longer affords the basis for an insanity defense” CALJIC No. 4.05 “correctly state[s] the law insofar as irresistible impulse might be offered as a defense at the sanity phase.” (Coddington, supra, 23 Cal.4th at p. 602, italics added.) Likewise, CALCRIM No. 3450 (Jan. 2006 ed.), the counterpart to CALJIC No. 4.05, is given in the sanity phase of trial. (People v. Thomas (2007) 156 Cal.App.4th 304, 309.) But defendant did not plead or raise the defense of insanity, making CALJIC No. 4.05 problematic in this trial.
In contrast, CALJIC No. 3.32 is in the “Culpability for Crime . . . Criminal Intent” subsection of the jury instructions.
CALCRIM No. 3450 instructs: “If you conclude that the defendant was legally sane at the time (he/she) committed the crime[s], then it is no defense that (he/she) committed the crime[s] as a result of an uncontrollable or irresistible impulse.”
Moreover, as set forth in section 28, the elimination of diminished capacity as a defense did not eliminate the admissibility of evidence of mental disease or disorder “on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought . . . .” (§ 28, subd. (a).) The CALJIC drafters recognized this in CALJIC No. 3.32 (Fall 2006 ed.), which explains the reasons for which mental disease or disorder may still be considered at the guilt phase: “You have received evidence regarding a [mental disease] [mental defect] [or] [mental disorder] of the defendant . . . at the time of the commission of the crime charged . . . . You should consider this evidence solely for the purpose of determining whether the defendant . . . actually formed [the required specific intent,] [premeditated, deliberated] [or] [harbored malice aforethought] . . . .” This clarifying instruction was not given.
Given the purpose of instructing with CALJIC No. 4.05, defendant argues that giving it at the guilt phase, in the context of the entire charge to the jury, was reasonably likely to cause the jury to misconstrue the law and fail to consider his only defense. While the trial court has no sua sponte duty to instruct on the relevance of mental illness, mental condition or intoxication to whether a defendant actually had specific intent or the required mental state, (People v. Castillo (1997) 16 Cal.4th 1009, 1015 (Castillo); People v. Saille (1991) 54 Cal.3d 1103, 1119) once the court provides some instruction on the issue, “it has to do so correctly.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1134 (Mendoza); Castillo, supra, at p. 1015. (“ ‘Although we might hesitate before holding that the absence of any instruction on voluntary intoxication in a situation such as that presented in this case is prejudicial error, when a partial instruction has been given we cannot but hold that the failure to give complete instructions was prejudicial error.’ ” (Castillo, supra, at p. 1015, citing People v. Baker (1954) 42 Cal.2d 550, 575-576.)
The court had no sua sponte duty to instruct with CALJIC No. 3.32 in the absence of a request. The failure to do so, however, resulted in the jury being given only a “partial instruction” on uncontrollable impulse, depriving Jason of his core theory of defense. The court instructed that uncontrollable impulse was not a defense, yet did not instruct on how evidence of uncontrollable impulse should be considered by the jury. The jury in essence was told that uncontrollable impulse could not be considered, when in fact it should have been considered as to how it may have affected defendant’s formation of specific intent, premeditation, and malice aforethought. At least one commentator has opined that it is the “goal of the defense attorney when presenting expert opinion on his client’s mental state . . . to have the jury instructed pursuant to CALJIC 3.32.” (Gordon, Old Wine in Old Bottles: California Mental Defenses at the Dawn of the 21st Century, supra, 32 Sw.U.L.Rev. at p. 94.)
In determining whether CALJIC No. 4.05, as given, was ambiguous and misleading, we do not consider it in isolation, but view it “in the context of the overall charge” to the jury. (Boyde v. California (1990) 494 U.S. 370, 378 (Boyde).) Where the “claim is that the instruction is ambiguous and therefore subject to an erroneous interpretation . . . the proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” (Id. at p. 380.) “An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words.” (People v. Campos (2007) 156 Cal.App.4th 1228, 1237, citing People v. Frye (1998) 18 Cal.4th 894, 957.)
The Attorney General maintains that there is “no reasonable likelihood that the jury understood CALJIC No. 4.05 to exclude consideration of [Jason’s] defense that he did not actually have the requisite mental state because of mental illness.” He asserts that, looking at the instructions as a whole, “the gravamen of the charge to the jury was that expert testimony, including the opinions of the experts and the bases therefore, was a category of evidence for their consideration.”
At oral argument, the Attorney General argued that the battery of instructions regarding intent was sufficient to cure the ambiguity of giving CALJIC No. 4.05 without CALJIC No. 3.32. But none of the instructions given suggests what CALJIC No. 3.32 explicates: the jury could and should consider evidence of mental disease, defect, or disorder for the purpose of determining whether the defendant actually formed the required specific intent, premeditated, deliberated or harbored malice aforethought. Likewise, the instructions regarding manslaughter and how murder can be reduced to manslaughter give no guidance to a jury how a mental disorder or mental disease affects the issues or is to be applied.
We fail to discern how the charge to the jury provided any hint that they could consider Jason’s mental disorder in determining whether the prosecution had proved he actually formed the requisite mental state for first degree murder. Instructing the jury that an uncontrollable impulse is not a defense without explaining that such a mental disorder could be considered in determining whether defendant actually formed the specific intent, acted with premeditation, or harbored malice aforethought, left the jury without any proper legal guidance on the central issue of defendant’s case.
First, CALJIC No. 4.05 instructed the jury that uncontrollable impulse is not a defense “[i]f a person is legally sane.” The jury, however, was not instructed on the meaning of legal sanity, because Jason did not plead not guilty by reason of insanity. The prosecutor used this fact advantageously in closing argument, emphasizing that if Jason “wanted to plead insanity, he could . . . . No plea of insanity, number one. Number two, no witness . . . has even suggested that [Jason] is legally insane. There’s a legal definition for insanity. You haven’t heard that and you’re not going to because insanity has no application to this case.” The jury, not instructed on legal insanity and how it differed from mental illness, would not likely conclude from the instructions that they could consider the evidence of Jason’s mental illness in determining whether he actually had the requisite mental state.
Further, the court’s evidentiary rulings emphasized its instruction that uncontrollable impulse was not a defense and suggested to the jury that evidence of Jason’s mental illness was not relevant. The core of Jason’s defense was that he did not actually form the required mental state due to an uncontrollable impulse. Dr. Rosenthal testified that Jason had intermittent explosive disorder, a condition characterized by episodes of sudden anger and aggression, during which the individual has “no control.” When he testified further that individuals with intermittent explosive disorder “don’t say to themselves ‘I’m angry and I’m going to go for it.’ It’s not a conscious decision. The anger takes over. . . . [They] lose consciousness in a sense of what they’re doing and don’t have the ability to make a choice,” the prosecutor objected. The prosecutor argued that based on sections 28 and 29, “[t]his is a question for the jury not within the area of competence of this witness.” The court sustained the objection and ordered the answer stricken. Later in the direct examination, the defense attorney asked Dr. Rosenthal if he “[h]ad an opinion as to [Jason’s] ability to handle stress?” Dr. Rosenthal responded, “Yes, . . . This is an individual, unfortunately, who has difficulty in handling stress because he doesn’t—he isn’t able to control his tendency to become overly—” The prosecutor objected again based on sections 28 and 29, and moved to strike the answer, which the court did.
“Sections 28 and 29 permit introduction of evidence of mental illness when relevant to whether a defendant actually formed a mental state that is an element of a charged offense, but do not permit an expert to offer an opinion on whether a defendant had the mental capacity to form a specific mental state or whether the defendant actually harbored such a mental state.” (Coddington, supra, 23 Cal.4th at p. 582.)
Jason has not raised the issue of whether this ruling was error, given that “[a]n expert’s opinion that a form of mental illness can lead to impulsive behavior is relevant to the existence vel non of the mental states of premeditation and deliberation . . . .” (Coddington, supra, 23 Cal.4th at pp. 582-583, italics in original.) Nevertheless, the prosecutor’s actions and court’s rulings suggested to the jury that evidence regarding whether Jason did not actually have the requisite mental state for the crime due to his mental condition was irrelevant and not to be considered.
During cross-examination, the prosecutor nevertheless asked Dr. Rosenthal the following: “Q. This morning you at least touched upon an element that I’m sure you do understand can be relevant. That’s the question of volition or free will; right? A. I didn’t say anything about free will. I don’t know where you’re going with that. Q. Okay. Where I’m going with it is this: To the extent that any diagnosis that you may come up with—or any other doctor for that matter—has relevance at all to these proceedings, it has to address itself in some way to the behavior of the subject, in this case Jason Beck, on a certain day at a certain time; right? A. Well, that’s not my decision. That’s the decision of the Court and the jury. Q. Sure, but you are here to offer an expert opinion about that; are you not?”
The prosecutor, after preventing the jury from considering Dr. Rosenthal’s testimony about certain characteristics of intermittent explosive disorder in general and as applied to defendant, then went on to confront him for not offering his opinion about defendant in particular. Moreover, the portion of Dr. Rosenthal’s testimony, stricken by the court, characterized intermittent explosive disorder such that an affected individual has no control and lacks consciousness during an explosive episode.
The instructions, as a whole, likely left the jury with the misconception that they could not consider Jason’s mental illness in determining whether he actually formed the requisite mental state, eliminating their consideration of his sole defense. “Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might.” (Boyde, supra, 494 U.S. at pp. 380-381.) Considering the language of CALJIC No. 4.05 in context, there is a reasonable likelihood that it was misconstrued by the jury.
B. Prejudice
The Attorney General maintains that, even if the instructions as a whole were ambiguous and likely misconstrued by the jury, there was no prejudice. Jason asserts that the instructional error deprived him of his due process rights, and was not harmless beyond a reasonable doubt.
“To prevail on a claim of instructional error, the appellant must show a reasonable probability of a more favorable result in the absence of the error. This determination depends heavily on the particular nature of the error, and its effect on the appellant’s ability to place his or her full case before the jury. Actual prejudice must be assessed in the context of the trial record; article VI, section 13 of the California Constitution requires us to examine “ ‘the entire cause, including the evidence’ ” to determine whether the verdict was prejudicially affected. We evaluate instructional errors by considering (1) the state of the evidence, particularly conflicts on critical issues; (2) the effect of other instructions; (3) the effect of counsel’s argument, particularly whether the respondent’s arguments to the jury may have contributed to the misleading effect of the instructional error; (4) any indication by the jury that it was misled; and (5) the closeness of the verdict. These factors apply both to erroneous instructions . . . and to the omission of required instructions . . . .” (Daum v. SpineCare Medical Group, Inc. (1997) 52 Cal.App.4th 1285, 1313-1314.)
“ ‘[I]n a non-capital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.] Watson (1956) 46 Cal.2d. 818, 836 . . . . A conviction of the charged offense may be reversed in consequence . . . only if, “after an examination of the entire cause, including the evidence” . . . it appears “reasonably probable” the defendant would have obtained a more favorable outcome had the error not occurred . . . .’ ” (People v. Lasko (2000) 23 Cal.4th 101, 111, citing People v. Watson, supra, 46 Cal.2d 818.) The instructional error “would have the effect of excluding defense evidence and is thus subject to the usual standard for state law error: ‘the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant.’ ” (Mendoza, supra, 18 Cal.4th at pp. 1134-1135, citing People v. Humphrey (1996) 13 Cal.4th 1073, 1089.) “ ‘We have made clear that a “probability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.’ ” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800, italics in original, citing College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)
The Attorney General maintains there was no prejudice because the evidence against appellant was “overwhelming under either theory of first degree murder” and the evidence of Jason’s “mental disorder, disease or defect was unconvincing.” We disagree with both assertions for the following reasons.
First, “when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” (People v. Kelly (1992) 1 Cal.4th 495, 531 (Kelly).) Where two different legal theories are presented to support a first degree murder charge and the jury was erroneously instructed as to either theory, the verdict must be reversed unless, “from the jury’s findings, [the court] can determine beyond a reasonable doubt the jury did not in fact rely on the erroneous instruction . . . .” (People v. Aguilar (1997) 16 Cal.4th 1023, 1034 (Aguilar).) People v. Sellers (1988) 203 Cal.App.3d 1042 is instructive. In that case, the defendant was charged with first degree murder based on alternate theories of premeditated murder or felony murder. The trial court gave erroneous instructions on rape, one of the alleged crimes underlying the felony murder theory. The court reversed the conviction, holding that “[b]ecause the jury was instructed on alternate first degree murder theories and the prosecutor did not request special findings, we cannot say which of those theories formed the basis of the first degree murder conviction.” (Id. at p. 1055.) Likewise here, the jury rendered a general verdict. Accordingly, we cannot discern on which theory the jury based its conviction.
While the jury’s special findings may demonstrate on which theory of first degree murder the jury found him guilty, that was not the case here. Unlike in Kelly, supra, 1 Cal.4th at page 531, the jury’s sole special finding, that Jason used a dangerous weapon in the commission of the crime, does not necessarily demonstrate on which theory of first degree murder the jury found him guilty.
Secondly, contrary to the Attorney General’s claim that the evidence of Jason’s “mental disorder, disease or defect was unconvincing,” there was extensive undisputed evidence of his longstanding mental illness. He began treatment for mental health issues at eight years of age, for excretory behaviors that were “not a normal aspect of child development.” In seventh grade, he again saw a psychologist, to whom he described his problems with stress, anger and punching walls and doors. The psychologist diagnosed him with ADHD. Dr. Rosenthal opined that defendant suffered from intermittent explosive disorder, a condition in which an individual suffers from explosive bouts of anger and violence with “no control during the episode.” His description of the symptoms of that disorder mirrored Jason’s symptoms since he was in seventh grade. While the prosecution argued Dr. Rosenthal and his opinions were not credible, he was not the first mental health professional to diagnose Jason with intermittent explosive disorder. In 2001 defendant sought mental health treatment at the East County Mental Health Center, was diagnosed with intermittent explosive disorder, and was prescribed Depakote and Zyprexa, both of which are used to treat intermittent explosive disorder. Even the prosecution’s expert witness, Dr. Kincaid, agreed that “when the treating doctor in East County Mental Health [Center] provided that diagnosis and then provided a treatment plan to address that condition, it made clinical sense to me. I see why the doctor made that diagnosis.”
Dr. Kincaid also disagreed with the sole doctor who believed, in 1999, that defendant suffered from no mental illness.
Based on this evidence, there was certainly a “reasonable chance, more than an abstract possibility” that the jury would not have convicted defendant of first degree murder based on premeditation and deliberation had it been fully and clearly instructed regarding the reasons for which they could consider defendant’s mental illness.
C. Felony Murder
The Attorney General also maintains that any error is harmless because the evidence of first degree murder based on the felony murder doctrine was “overwhelming.” The Aguilar rule requires reversal unless the court “can determine beyond a reasonable doubt the jury did not in fact rely on the erroneous instruction,” (Aguilar, supra, 16 Cal.4th at p. 1034 or “absent a basis in the record to find that the verdict was actually based on a valid ground.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Defendant asserts that it is impossible to determine whether the jury relied on a valid ground for his conviction. He maintains that his trial counsel was ineffective in failing to request an after-acquired intent instruction or adequately arguing that theory to the jury.
The prosecution argued that defendant was guilty, under the felony-murder rule, based on his commission of attempted robbery or burglary. The prosecutor conceded that “the crime of robbery actually was not committed in this case, but attempted robbery was.” Robbery requires an “intent to steal the property at the time the accused took it. . . . Such theft must be accomplished by force or fear. . . . Thus, where the defendant kills the victim, and only thereafter decides to take property in the victim’s possession, the force-or-fear requirement has not been met.” (People v. DePriest (2007) 42 Cal.4th 1, 46-47, citing People v. Turner (1990) 50 Cal.3d 668, 690.) Likewise for burglary, the defendant must have the specific intent to steal and permanently deprive another of his or her property at the time of entering the building. (See People v. Felix (1994) 23 Cal.App.4th 1385, 1397.)
The prosecution argued Jason’s financial difficulties and history of stealing from his parents, combined with the evidence of Karen’s missing debit card and checks, evidenced his formation of the intent to burglarize or rob his mother prior to killing her. The evidence also showed, however, that defendant had a long history of borrowing from his mother, and that although she had recently expressed an intent to stop lending him money, in the past she had always relented. Additionally, there was evidence he told his sister and Investigator Franzen on the day of the killing, and Dr. Rosenthal some months later, that he went to the house on September 9th to repay $20 his mother had loaned him. One of the stolen checks was dated two days prior to the killing, and the debit card had been used the day before to purchases $20.01 worth of gasoline. While Jason’s palm prints were found in blood on the door and casing of his mother’s upstairs office, no blood evidence was found on her purse, checkbook, or the door to the pantry.
A jury could infer from these circumstances that Jason went to his mother’s home without any intent to commit a crime, got into an argument and killed her, and afterwards formed the intent to steal from the locked office. A jury could also infer that the debit card and checks had been taken prior to the day of the killing. The jury could reasonably find that Jason killed his mother without forming the requisite intent for first degree murder. The evidence that defendant formed the intent to rob or burglarize his mother prior to killing her was certainly not overwhelming.
The prosecutor’s suggestion that Jason “clever[ly]” back dated the stolen check, thus demonstrating he was “trying to get out from underneath the felony-murder rule” assumes that Jason had more than a casual understanding of the law of felony murder before September 9th. We find no evidence in the record supporting that assumption.
The defense attorney’s failure to request an after-acquired intent instruction, which Jason now argues was ineffective assistance of counsel, compounded the prejudice. In order to establish a claim of ineffective assistance, a defendant bears the burden of demonstrating that counsel’s performance was deficient because it “fell below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688.) 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.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) 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 . . . .” (People v. Huggins (2006) 38 Cal.4th 175, 206, citing People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) “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.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 746, quoting Strickland, supra, 466 U.S. at p. 694.)
Here, there simply could be no tactical explanation for not requesting an after-acquired intent instruction. Jason’s attorney mentioned the concept of after-acquired intent in his closing argument stating, “Robbery requires force. If the force came—the lifting of the check came afterwards—speak to that later—you don’t have a robbery. When was the intent formed? Say, an example, he went to ask for money. Mom said no. They argued, fought, she was killed and ‘Okay. I’ll go find a check.’ Once again, he didn’t go to find money. He went there to ask for money. The intent to steal didn’t exist when he entered the room.” Moreover, the defense attorney’s argument misstated the law, leading to the prosecutor’s accusation that he had played “fast and loose with the law.” The prosecutor seized on the statement that if “the lifting of the check came afterwards . . . you don’t have a robbery,” because “[t]he intent to steal didn’t exist when [Jason] entered the room,” telling the jury during his rebuttal: “[defense counsel] kind of played a little fast and loose with the law on burglary and the law on robbery. . . . The felony-murder rule applies if it’s robbery or attempted robbery, even if the suspect conveniently killed his victim before the actual taking takes place. The felony-murder rule applies. . . . [Defense counsel] went and said when he was talking about robbery, the intent to steal didn’t exist when [Jason] entered the building. Didn’t matter with respect to robbery. The intent to steal arose when mom said no. That’s when the intent to steal [a]rose. He killed her after that; and therefore, it is an attempted robbery and the felony-murder rule applies and that’s why it’s first degree murder.”
Given that the defense attorney argued, albeit not entirely accurately, the after-acquired intent theory, we cannot discern any tactical reason for not requesting an instruction on it. Additionally, his imprecise argument regarding that principle, combined with the lack of instruction, left the jury with insufficient legal guidance.
“However reprehensible the conduct of an accused, he is entitled to have its legal consequences determined from competent evidence by a jury properly instructed.” (People v. Orcalles (1948) 32 Cal.2d 562, 573.) The instructions as a whole rendered it likely that the jury misconstrued CALJIC No. 4.05, and mistakenly believed that they could not consider defendant’s core defense theory. The jury was left rudderless. The resulting prejudice was compounded by his counsel’s failure to seek an instruction on after-acquired intent to counter the prosecutor’s felony-murder theory, and his failure to accurately explain after-acquired intent in his closing argument. Accordingly, because we cannot determine beyond a reasonable doubt that the jury in fact based its verdict on a valid ground, we must reverse the conviction.
DISPOSITION
The judgment is reversed and the case is remanded to the trial court.
We concur: Swager, J., Margulies, J.