Opinion
H044694
12-22-2021
THE PEOPLE, Plaintiff and Respondent, v. CHASE AUSTIN BENOIT, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1512094
GROVER, J.
A jury convicted Chase Austin Benoit of second degree murder for fatally stabbing Cody Flores. Defendant argues that the trial court prejudicially erred by failing to instruct on involuntary manslaughter and by failing to identify voluntary manslaughter in addition to murder when instructing on mental impairment as negating specific intent. He also seeks a remand for the trial court to conduct a mental health diversion hearing under Penal Code section 1001.36, enacted after he filed his notice of appeal. Our review of the record shows no instructional error or prejudice, and defendant is statutorily ineligible for mental health diversion. We will affirm the judgment.
I. BACKGROUND
In May 2015, 19-year-old Chase Benoit fatally stabbed Cody Flores at a party in Morgan Hill. Defendant had never met Flores before stabbing him, but Flores had stabbed defendant's brother in 2011. Defendant believed Flores to be a violent man who used drugs and carried a knife, and the two had exchanged threats on Facebook a few weeks before the party.
Defendant spotted Flores almost immediately upon learning Flores was at the party. They exchanged words, and defendant tried to either punch Flores or knock a beer from his hand. Flores turned and ran, and was pursued by defendant for nearly 400 yards. Defendant stabbed Flores by a chain link fence in an open field, and quickly fled. Flores was unarmed. Defendant's friend Spencer Smith, who had invited Flores to the party, witnessed the encounter between and defendant and Flores and ran after them. Earlier in the evening, Smith had driven with Flores to San Jose where Flores obtained heroin, which they smoked before returning to the party. Authorities believed Smith was complicit in Flores's killing based in part on text messages Smith had sent defendant from San Jose.
Defendant and Smith were charged with first degree murder (Pen. Code, § 187). The prosecution alleged defendant personally used a deadly weapon (a knife) in committing the offense (Pen. Code, § 12022, subd. (b)(6)). At trial, defendant admitted stabbing Flores. He testified that he feared for his life when he saw and pursued Flores, and that his fear was influenced in part by PTSD from seeing his father stabbed by his sister's boyfriend five years earlier, and from the stabbing of his brother the following year, which he did not witness but had a lasting impact. He testified that he pursued and stabbed Flores because he was certain that Flores would "attack me no matter what."
A psychiatrist evaluated defendant shortly before trial, and testified that defendant suffered from PTSD. He explained that PTSD can diminish the ability to rationally assess a threat. He noted aggression can be consistent with PTSD, but acknowledged he did not know whether defendant had acted out of fear or anger. The psychiatrist testified that a person with PTSD can show anger and irrational conduct as the product of a "genuine fear for one's safety," and a PTSD sufferer could be afraid for his life while a non-sufferer would not be in such fear. The psychiatrist opined that PTSD influenced the stabbing to a reasonable degree of medical certainty.
The trial court instructed the jury on first degree murder, second degree murder, voluntary manslaughter (heat of passion), voluntary manslaughter (imperfect self-defense), self-defense, and mental impairment as a defense to murder. The court denied defendant's request to instruct on involuntary manslaughter (CALCRIM No. 580) because it found the evidence did not support that the stabbing resulted from criminal negligence; rather, "[t]here's undisputed evidence that it was done by intentional conduct." Defense counsel argued to the jury that even if they were to find unreasonable the theory of proving complete self-defense, defendant was not guilty of murder because he had acted out of fear, "under the influence of intense emotion," and in circumstances demonstrating "classic heat of passion" related to his brother's stabbing. Counsel further argued defendant had acted in imperfect self-defense because PTSD influenced his ability to assess the situation and react rationally.
The jury found defendant not guilty of first degree murder, guilty of second degree murder, and found true the deadly weapon allegation. (Codefendant Smith was found not guilty of murder and manslaughter.) Defendant was sentenced to 15 years to life in prison.
II. DISCUSSION
A. Involuntary Manslaughter
Relying on Justice Kennard's concurring opinion in People v. Bryant (2013) 56 Cal.4th 959, defendant contends the trial court prejudicially erred by refusing to instruct on the lesser included offense of involuntary manslaughter. Defendant argues that Justice Kennard's concurrence "stands for the proposition that where there is an unlawful assaultive felony, such as the stabbing in the present case, and the evidence arguably negates implied and express malice, the crime is necessarily involuntary manslaughter." Citing People v. Nelson (2016) 1 Cal.5th 513, 555-556 (Nelson), he argues that where malice is negated based on mental illness evidence of "diminished actuality" under Penal Code section 28, instructing on the lesser included offense of involuntary manslaughter is required, and that the instruction properly applies to the facts and circumstances here.
Penal Code section 28, subdivision (a) states: "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." The subdivision "allows defendants to introduce evidence of mental disorder to show they did not actually form a mental state required for guilt of a charged crime. But the scope of the diminished actuality defense is necessarily limited by the presumption of sanity, which operates at a trial on the question of guilt to bar the defendant from claiming he is not guilty because he is legally insane." (People v. Elmore (2014) 59 Cal.4th 121, 141.)
"An instruction on a lesser included offense must be given only if there is substantial evidence from which a jury could reasonably conclude that the defendant committed the lesser, uncharged offense but not the greater, charged offense." (Nelson, supra, 1 Cal.5th at p. 538.) We review independently whether the trial court properly instructed on a lesser included offense. (Ibid.)
The defendant in Bryant stabbed her boyfriend in the chest during an altercation and was convicted of second degree murder. (Bryant, supra, 56 Cal.4th at p. 963.) The trial court instructed on first degree murder, second degree murder, and the lesser included offense of voluntary manslaughter based on heat of passion and unreasonable self-defense. (Id. at pp. 963-964.) Our Supreme Court rejected the argument that the trial court should have instructed on voluntary manslaughter on the additional theory that the defendant had killed without malice in the commission of an inherently dangerous assaultive felony. (Id. at p. 963.) The court held that voluntary manslaughter requires malice-that is, either an intent to kill or a conscious disregard for life. (Id. at pp. 969- 970 [voluntary manslaughter theories "are united by the principle that when a defendant acts with an intent to kill or a conscious disregard for life (i.e., the mental state ordinarily sufficient to constitute malice aforethought), other circumstances relating to the defendant's mental state may preclude the jury from finding that the defendant acted with malice aforethought"].) Voluntary manslaughter may result from either provocation or unreasonable self-defense, both of which operate to negate the malice required for murder. (Id. at pp. 968-969.) The Bryant court concluded that a killing without either an intent to kill or a conscious disregard for life committed during an inherently dangerous assaultive felony cannot be voluntary manslaughter. (Id. at p. 970.)
Justice Kennard's concurring opinion in Bryant addressed a question implicated by the facts in that case although not a ground upon which the court had granted review: "Can an assault with a deadly weapon constitute an unlawful act that makes a killing occurring during the assault involuntary manslaughter?" (Bryant, supra, 56 Cal.4th at p. 972 (conc. opn. of Kennard, J.).) In relevant part, Penal Code section 192, subdivision (b) defines involuntary manslaughter as a killing "in the commission of an unlawful act, not amounting to a felony." Justice Kennard explained that the phrase "not amounting to a felony" is not an element of the offense, but originated in the common law to distinguish involuntary manslaughter from felony murder. (Id. at p. 972.) In defining involuntary manslaughter, the Legislature "must have meant that a killing during an unlawful act is involuntary manslaughter unless the unlawful act is the type of felony that turns the killing into the greater crime of murder." (Id. at p. 973.) Assault with a deadly weapon is not among the enumerated offenses supporting first degree felony murder (Pen. Code, § 189, subd. (a)); nor is it a "nonassaultive felony inherently dangerous to life" to which second degree felony murder would apply. (Id. at p. 973.) "A killing during an assault with a deadly weapon can be murder if the prosecution proves that the defendant acted with malice aforethought"; in the absence of malice, a killing during an assault with a deadly weapon is involuntary manslaughter. (Id. at pp. 973-974.) The alternative would lead to an absurdity: A defendant who killed in the commission of an assault charged as a misdemeanor could be convicted of involuntary manslaughter, but a defendant who killed in the commission of a more serious assault charged as a felony could not. (Id. at p. 974.) Justice Kennard also concluded that because Bryant had presented evidence from which the jury could have reasonably concluded that she lacked malice, a jury instruction on involuntary manslaughter as a necessarily included lesser offense of the charged murder would have been proper had it been requested. (Id. at p. 975.)
We agree with Justice Kennard's conclusion that involuntary manslaughter would encompass a killing without malice in the commission of an unlawful act which falls outside the definition of felony murder, such as a felony assault. Indeed, "the necessary implication of the majority's decision in Bryant is that the offense is involuntary manslaughter." (People v. Brothers (2015) 236 Cal.App.4th 24, 33-34 (Brothers).) But, as we shall explain, defendant was not entitled to the instruction here.
"[A]n instruction on involuntary manslaughter as a lesser included offense must be given when a rational jury could entertain a reasonable doubt that an unlawful killing was accomplished with implied malice during the course of an inherently dangerous assaultive felony." (Brothers, supra, 236 Cal.App.4th at p. 34.) The lesser included offense instruction is required" 'only where there is "substantial evidence" from which a rational jury could conclude'" the defendant committed the lesser, but not the greater, offense. (Ibid.; People v. DePriest (2007) 42 Cal.4th 1, 50.) There is no sua sponte duty to instruct on involuntary manslaughter where "the defendant indisputably has deliberately engaged in a type of aggravated assault the natural consequences of which are dangerous to human life, thus satisfying the objective component of implied malice as a matter of law, and no material issue is presented as to whether the defendant subjectively appreciated the danger to human life his or her conduct posed." (Brothers, at p. 35; see also Bryant, supra, 56 Cal.4th at p. 965 [components of implied malice are "the performance of 'an act, the natural consequences of which are dangerous to life, '" by a person who" 'knows that his conduct endangers the life of another and … acts with a conscious disregard for life' "].) In Bryant, an involuntary manslaughter instruction would have been appropriate where neighbors found the victim lying facedown and Bryant screaming and pleading for him to wake up; Bryant had thrust a knife once at the victim as he lunged at her, causing the knife to enter his chest; and Bryant testified that the stabbing was not deliberate. (Bryant, at pp. 963, 971.) In contrast, an involuntary manslaughter instruction was not warranted in Brothers where, crediting Brothers' testimony that she "did not know this was going to happen," her testimony "unequivocally established she engaged in a deliberate and deadly assault because she had been enraged, 'out of control,' and unable to calm herself." (Brothers, at p. 34.)
The facts here relating to the subjective component of malice are analogous to those in Brothers. It is not disputed that by stabbing Flores defendant engaged in objectively dangerous conduct. Defendant admitted at trial to not only stabbing Flores in the chest, but to doing so with the express goal of preventing Flores from attacking him. When asked what he was thinking as he stabbed Flores in the chest, defendant testified, "I just knew that I had to stab him before he could stab me and kill me." He also testified, "I just knew that I didn't want to get attacked and that, I guess, acting was the only way to protect myself."
Defendant argues that the evidence demonstrated he "was in a dissociative state during the time beginning with his confrontation with [Flores] and culminating with his stabbing of [Flores] and flight from the crime scene." He argues the psychiatrist's testimony showed that "the PTSD sufferer is to some extent no longer present, feeling as if he has traveled back to the traumatic event, with impairment of attention, concentration, and focus in real time." A "dissociative state" suggests lack of capacity to form specific intent. We note that defendant did not plead not guilty by reason of insanity, and he is presumed to have the capacity to form a specific mental state. (People v. Elmore, supra, 59 Cal.4th at p. 141 fn. 12 ["The conclusive presumption of sanity applies … when the defendant pleads not guilty without also entering an insanity plea"]; People v. McGehee (2016) 246 Cal.App.4th 1190, 1210-1211 [inability to understand nature and quality of a criminal act is a claim of insanity].)
The psychiatrist testified that defendant's memory of the stabbing may have been incomplete because he experienced "symptoms of dissociation and that is simply memory loss and when somebody is emotionally in a situation they can have problems with memory, so it's reasonable to consider that they cannot remember everything." Defendant described the stabbing as a "blur" and his memory of it was spotty. Even if we view the foregoing as substantial evidence that defendant was experiencing symptoms of dissociation at the time of the stabbing, we find no error. There is no evidence to support an inference that those symptoms of dissociation caused defendant not to subjectively appreciate that stabbing someone multiple times is dangerous to human life (so as to preclude implied malice).
Defendant told the psychiatrist that "he needed to extinguish the threat, that the threat was there, that all he could think about was being killed, that he assumed Mr. Flores was running to either get more people, or to get a weapon to kill him, and he was convinced if he did not chase him he would be killed." The psychiatrist opined that defendant's "general feelings of uneasiness and feelings of fear about being around other people was increased" at the party, and those symptoms increased further when he learned Flores was at the party "because he had already determined, perhaps incorrectly, that Mr. Flores was a threat to him." He opined that defendant's PTSD symptoms "increased his risk of striking out at others in general at the party, but specifically at Mr. Flores," and "his risk of harming Mr. Flores was substantially increased by his PTSD symptoms because of all the connections that he had with Mr. Flores prior to the event." The PTSD evidence here stands in contrast to the mental health evidence in Nelson, where the defendant, who did not testify, told the psychologist he did not know what he was going to do, but contemplated shooting himself, as he approached the parking lot where he shot the victims; the psychologist testified that the defendant was sane but suffered from schizophrenia when he shot the victims, and that schizophrenia "can cause a person to experience disordered thinking" and "act on delusional ideas." (Nelson, supra, 1 Cal.5th at pp. 530-531.)
On this record, the evidence of defendant's mental disorder did not support an involuntary manslaughter instruction. The evidence did not show that PTSD prevented defendant from appreciating the danger to Flores' life posed by his conduct. Viewed in defendant's favor, the PTSD evidence offered an explanation for his conduct, but it was insufficient for a rational jury to find no implied malice. We find no instructional error, and defendant was not denied his right under the Sixth and Fourteenth Amendments to present a complete defense.
B. Mental Impairment Instruction
Consistent with Penal Code section 28, the jury was instructed regarding the evidence of defendant's PTSD using CALCRIM No. 3428: "Mental Impairment: Defense to Specific Intent or Mental State. [¶] You have heard evidence that the defendant may have suffered from a mental disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt the defendant acted with the required intent or mental state, specifically, malice aforethought and with premeditation and deliberation. If the People have not met this burden, you must find the defendant not guilty of first degree murder and/or murder."
Defendant did not object to the instruction as given by the trial court. Under Penal Code section 1259, "[t]he appellate court may [] 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." Under that standard, which we apply here," '[t]he question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818.'" (People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1406 (Ocegueda); People v. Anderson (2007) 152 Cal.App.4th 919, 927 [error affects a defendant's substantial rights if it is reasonably probable a more favorable result would have been reached in the absence of the error].)
Relying principally on Ocegueda, defendant argues the trial court erred by failing sua sponte to modify its instruction to state that the mental disorder evidence could be considered in determining whether defendant's actions constituted voluntary manslaughter. The jury in Ocegueda found the defendant guilty of attempted murder, and found not true that the attempt was willful, deliberate, and premeditated. (Ocegueda, supra, 247 Cal.App.4th at p. 1369.) The jury was instructed on attempted voluntary manslaughter under the theory of imperfect self-defense, based in part on evidence that the defendant had a mild developmental disability which caused him to have difficulty in planning and understanding the causes and effects of his actions, and in considering and weighing options. (Id. at pp. 1402, 1405.) Using CALCRIM No. 3428, Ocegueda's jury was instructed:" 'You have heard evidence that the defendant may have suffered from a mental disease, defect, or disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crimes and special allegations, the defendant acted or failed to act with the specific intent or mental state required for those crimes and special allegations. [¶] Those specific intents and mental states are as follows: [¶] Number 1: The intent to kill contained in attempted murder and attempted voluntary manslaughter. [¶] Number 2: The premeditation and deliberation contained in the special allegation relating to the charge of attempted murder." (Ocegueda, supra, at p. 1405.)
The Ocegueda court explained, "[W]ith respect to the attempted murder charge here, the trial court instructed the jury it could consider evidence of defendant's mental disabilities 'only for the limited purpose' of deciding whether defendant harbored the 'intent to kill.' … [Penal Code] Section 28 expressly makes evidence of mental disabilities admissible to consider whether a defendant harbored express malice. Therefore, by limiting the jury's consideration of mental disability evidence to the question of whether defendant had an intent to kill-but not whether he harbored express malice-the trial court's instruction ran afoul of Section 28." (Ocegueda, supra, 247 Cal.App.4th at p. 1407.) By "explicitly limit[ing] the jury's consideration of mental disabilities to the issue of whether he intended to kill," the instruction did not allow the jury to consider whether Ocegueda's mental condition made it more likely that self-defense would appear necessary. (Id. at p. 1409.)
Unlike lesser offenses which the prosecution does not need to disprove to establish guilt on the greater offense, a jury instructed on a theory of voluntary manslaughter must reject that theory in order to return a guilty verdict on murder. Indeed, defendant correctly notes that the absence of imperfect self-defense is an element of murder which the prosecution must prove beyond a reasonable doubt when the facts supporting imperfect self-defense are present. Here, the jury was instructed that defendant was charged with murder, and that manslaughter is a lesser offense to murder. The manslaughter instruction identifies the prosecution's burden to prove "beyond a reasonable doubt that the defendant was not acting in imperfect self-defense" and "did not kill as the result of a sudden quarrel or in the heat of passion," and the instruction directs the jury to find defendant not guilty of murder if the prosecution does not meet that burden. The jury therefore had to consider and reject voluntary manslaughter in order to find defendant guilty of murder, and the jury was instructed that it could consider evidence of defendant's mental condition when deciding whether he acted with malice aforethought at the time he stabbed Flores. The instruction here did not limit the jury's consideration of the PTSD evidence to murder, but extended to the intertwined questions of heat of passion and imperfect self-defense.
See CALCRIM No. 3517 (deliberation and completion of verdict forms for non-homicide cases when lesser included offenses and greater crimes are not separately charged and the jury receives guilty and not guilty verdict forms for greater and lesser offenses).
Even if the mental state instruction as given were deemed erroneous, the instruction did not affect defendant's substantial rights. (Ocegueda, supra, 247 Cal.App.4th at p. 1410.) After careful review of the record, we do not see a reasonable probability the jury would have deliberated on the voluntary manslaughter theories without considering the evidence of defendant's mental state, or returned a verdict more favorable to defendant. The prosecutor argued that the PTSD evidence should not be believed, but acknowledged its relevance to the theories of voluntary manslaughter: "The reason you are getting [the manslaughter instructions] is because of the testimony of [defendant] and his psychiatrist. … These instructions don't apply if you disbelieve [defendant] and his psychiatrist." The prosecutor argued that PTSD is irrelevant to the heat of passion theory of manslaughter, which requires that the provocation cause "a person of average disposition" (not a person with PTSD) to act from passion rather than judgment, and that the theory of imperfect self-defense "is why you heard evidence of PTSD in this case." The prosecutor discredited the PTSD diagnosis as opportunistic and lacking a sound basis. Defense counsel argued that heat of passion and imperfect self-defense are the "two different ways that malice is negated under the law." He argued that "[s]omeone who had stabbed his brother, someone who had threatened to stab him … and you see him there, walking toward you. It's classic heat of passion." And he incorporated the PTSD evidence into his argument on imperfect self-defense without objection.
Defendant acknowledges in his opening brief that "[t]he PTSD mental disorder evidence was central to the defense theory of the case," and "it is demonstrably clear that the jury found this evidence compelling." Indeed, defendant refers us to letters jurors submitted to the trial court at sentencing. One letter explained, "The jury fought long and hard between Second Degree and manslaughter knowing [defendant] was definitely damaged from his upbringing…" and in another a juror wrote, "[A]lthough I do not believe [defendant] suffers from PTSD, I do believe that he has some severe mental and emotional issues that have not been addressed in his young life." A third juror wrote, "I and the other jurors thought that [defendant] did in fact have major state of mind issues with the environment and events that he experienced," but "in the end, we didn't find enough evidence that [defendant] was provoked in a reasonable manner." Those letters demonstrate that the jury considered defendant's mental state evidence in deciding between murder and manslaughter.
Further, any purported instructional error did not impair defendant's federal constitutional rights to present a defense. Defendant was able to and did present the two voluntary manslaughter defenses, and the trial court did not restrict defendant's ability to prove or argue those defenses. (See People v. Hovarter (2008) 44 Cal.4th 983, 1022 [failure to give pinpoint instruction did not give rise to federal constitutional claim where jury was able to consider the defense theory and both parties addressed the theory in argument].)
C. Mental Health Diversion Eligibility
Defendant was tried and convicted in 2017. In 2018, the Legislature established a diversion program for defendants with diagnosed mental disorders, including PTSD. (Pen. Code, § 1001.36, subds. (a), (b)(1); Stats. 2018, ch. 34 (A.B. 1810), § 24, eff. June 27, 2018.) The statute was amended effective 2019 to exclude defendants charged with certain enumerated offenses including murder and voluntary manslaughter. (Id., subd. (b)(2)(A); Stats. 2018, ch. 1005 (S.B. 215), § 1, eff. Jan. 1, 2019.) Defendant argues we should conditionally reverse the judgment and order the trial court to conduct a mental health diversion hearing under the original 2018 version of the statute. In his view, the ameliorative provisions of the statute apply retroactively to his case, but the amendment excluding his eligibility cannot be applied retroactively due to ex post facto limitations.
Our Supreme Court recently ruled that the mental health diversion statute (in its current 2019 form) applies retroactively to cases on appeal. (People v. Frahs (2020) 9 Cal.5th 618, 630-637.) While the Supreme Court has not answered the precise question presented here, we agree with the appellate courts that have addressed the issue that the original version of the statute does not apply in defendant's circumstances. (People v. McShane (2019) 36 Cal.App.5th 245, 260 [murder committed before diversion program enacted; no ex post facto violation]; People v. Cawkwell (2019) 34 Cal.App.5th 1048 [same, sex offender conviction].)
When defendant stabbed Flores, he was not eligible for pretrial mental health diversion because the program did not exist. Now he is once again ineligible for the program because of the murder exclusion. A statute violates the prohibition against ex post facto laws" 'if it punishes as a crime an act that was innocent when done or increases the punishment for a crime after it is committed.'" (Cawkwell, supra, 34 Cal.App.5th at p. 1054.) "The ex post facto prohibition ensures that people are given 'fair warning' of the punishment to which they may be subjected if they violate the law; they can rely on the meaning of the statute until it is explicitly changed." (Ibid.) The ex post facto proscription does not limit application of the 2019 amendment because the murder exclusion did not change the consequences of defendant's crime as of the time it was committed. (McShane, supra, 36 Cal.App.5th at p. 260.)
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: Greenwood, P.J., Elia, J.