Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI902657. John M. Tomberlin, Judge. Affirmed.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Jennifer A. Jadovitz and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P.J.
A jury convicted defendant, Darrell Williams, of felony evading (Veh. Code, § 2800.2, subd. (a)). In bifurcated proceedings, he admitted having suffered three strike priors (Pen. Code, § 667, subds. (b)-(i)) and a prior conviction for which he served a prison term (Pen. Code, § 667.5, subd. (b)). He was sentenced to prison for 25 years to life, plus one year and appeals, claiming the trial court committed misconduct by commenting about a defense witness’s testimony, his trial counsel was incompetent for failing to object to the trial court’s remarks and for not producing rebuttal evidence, the trial court erred in excluding evidence, the jury was misinstructed and sentencing error occurred. We reject his contentions and affirm.
Facts
Around 2:00 p.m. on a rainy December 7, 2009, defendant, driving a Chevy Equinox, ran a red light on Highway 18 in Apple Valley and almost collided with an on-coming off-duty marked patrol car that was turning on a green arrow in front of defendant’s vehicle. After both vehicles stopped, the patrol car resumed and completed its left hand turn and defendant continued at a high rate of speed through the intersection, against the red light. An unmarked patrol car, which had pulled up next to defendant’s vehicle before defendant had entered the intersection and almost hit the marked patrol car, activated its red light and siren and followed defendant’s vehicle for two to four minutes. Defendant’s vehicle sped up to 90 miles per hour, wove in and out of moderate traffic, almost colliding with other cars, at times, driving onto the median (near oncoming traffic) and the right shoulder and drove through two or more red lights. At one point, the unmarked patrol car came up to the side of defendant’s vehicle and the officers in the patrol car made eye contact with defendant, who then continued to speed away, dart through traffic and run red lights. An officer in an on-duty marked patrol car joined in the chase and the unmarked patrol car fell back, but continued to follow defendant’s vehicle. The officer driving the on-duty marked patrol car was in uniform and put on all the lights his car had, including the driver’s side spotlight, and the siren. He saw that defendant had either his hand or a scarf over his face. He pursued defendant for almost a minute and a half, while defendant drove onto the median and onto the dirt on the right shoulder, both, twice, made unsafe lane changes, almost hit other cars and went 70 miles per hour in a 60 m.p.h. zone. Defendant stopped only when he became boxed in by the police and other cars. The officer ordered defendant to show his hands, but the latter did not, initially. Rather, defendant opened his vehicle door and put one leg out. The officer ordered defendant to show his hands a second time, and this time defendant did, and got out of his vehicle. The officer ordered defendant to face away from him but defendant did not. The officer ordered defendant to put his hands up and turn around, but, instead, defendant put his hands on his vehicle and looked at the officer. The officer told defendant to put his hands in the air and walk back to the officer and defendant complied. Defendant had the odor of alcohol on his breath, his eyes were bloodshot and watery and his gait was unsteady. However, he was coherent. He asked why he had been stopped and whether they were going to tow his car. Defendant took his driver’s license out of his wallet for the officer. It had been suspended due to a previous driving under the influence conviction. The officer asked defendant several times if he had been drinking and defendant replied several times that he had not. The officer asked defendant why he had not stopped and defendant did not answer him. After being handcuffed and told that he was under arrest and his vehicle would be towed, he became belligerent and cussed. Defendant had traveled about five miles during the pursuit by both police vehicles.
This car was on court, not traffic, duty at the time, and, therefore, did not pursue defendant’s vehicle.
Issues and Discussion
1. Remarks by Trial Court
A physician, the chief medical officer at the West Valley Detention Center, where the 55-year-old defendant had been incarcerated following his arrest, testified on direct examination by defense counsel that a physician’s assistant told him that one of the nurses reported to the physician’s assistant that defendant had complained of having memory lapses and difficulties. The doctor went on to testify that the physician’s assistant saw defendant two or three times in February 2010, for what the doctor guessed was a total of 40 minutes, and concluded, based solely on defendant’s self report, that defendant was having significant lapses in memory. The physician’s assistant asked the doctor how to do a work-up for dementia and she ordered tests for the reversible causes of dementia, all of which came back without significant findings. The doctor testified that after the reversible causes of dementia had been eliminated, “[a]t that stage, all you can say is [that defendant] didn’t have any reversible cause of dementia. From there, you go to keep assessing and trying to make your official diagnosis. [¶]... [¶] [S]ometimes in dementia, you can only diagnose at autopsy. It’s usually a clinical diagnosis, so you do some cognitive testing and keep observing your patient and use your best clinical skills to try to make that judgment. There’s not a test to order and say this is dementia or this is not dementia.” The doctor reported that defendant’s medical chart contained information supplied by the nurses on defendant’s housing unit and the physician’s assistant that there had been a “sort of steady decline.” When asked if defendant could be faking dementia to affect the outcome of his trial, the doctor said, “Anything’s possible, but given the number of people that have seen [defendant], and he’s had a very consistent presentation and the nurses in [his] unit... usually spot [faking] because people do try that sometimes.” The doctor opined it was unlikely that defendant was “trying to fool the system” adding, “It seems to be a fairly solid diagnosis.” He “supposed” that it was possible that someone with dementia could look at someone in a special uniform and not recognize what that uniform is, although he had not seen any case records of that happening. He said that dementia causes a person to begin to lose insight, to be unsure about what they’re doing sometimes and “potentially” not to realize something that’s going on around them. Although the doctor had not yet expressly opined that defendant had dementia or that the physician’s assistant had so concluded, he volunteered that defendant’s dementia was between mild and moderate “because [defendant is] generally able to take care of himself. He gets some reminders from the nurses.”
The doctor reported that it was his understanding that defendant was moved to the medical unit in May 2010 because he was having some difficulty taking care of himself and because he was having trouble following the orders of custody staff. Therefore, any observations by these nurses could not have influenced the physician’s assistant’s actions in February. As we note later, the doctor also testified that defendant’s dementia was mild to moderate based on the fact that defendant was “generally able to take care of himself.”
Interestingly enough, at the Evidence Code section 402 hearing, outside the presence of the jury, the doctor testified that he thought that there was “a strong possibility that [defendant had]... dementia.” He added that defendant, at 55, was a “little bit young for that” and that a “neurology consult to confirm” had not yet been conducted. He said that he could not absolutely diagnose defendant with dementia because it “is a clinical diagnosis. Sometimes it takes time before you’re fairly certain. His chart and the people I’ve talked to make it look like it’s definitely a concern. We’re just waiting for neurology to give us what their input would be.”
On cross-examination, the doctor conceded that he had never examined defendant or spoken to him. He said that all people’s brains atrophied as they got older and defendant’s CT scan did not show that his atrophy was out of line for his age. He said that the physician’s assistant did “the little bit of cognitive testing that she did” during the approximately 40 minutes total time she spent with defendant. The doctor said that his opinion that defendant had dementia was based on the physician’s assistant’s observations of him and defendant’s self-reporting to her and defendant’s “interaction with the nurses” in his medical housing unit, which, according to the doctor, he moved to the month before trial and after the physician’s assistant made her observations and ordered the tests that were conducted. The doctor also testified that there was one nurse on the unit for 150 inmates and the nurse did not see defendant every day. He conceded that dementia could affect a person’s judgment and cause them to not be able to realize something that’s going on “potentially... depend[ing] on the degree of the severity.” He said it was hard to say how severe the dementia would have to be to affect one’s judgment and render them unable to know what was going on and these were “possible feature[s]” of dementia. He said he lacked personal knowledge whether “any sort of effects like that” happened to defendant. The doctor was asked if knowing that defendant had previously admitted to a probation officer that he had faked a mental illness in a criminal case in order to be sent to a mental institution rather than prison would be something for him to consider. He responded that it “would certainly raise a red flag[, ]” close attention should be paid for signs of malingering or faking and neither he nor the physician’s assistant had the benefit of this knowledge when forming their opinions about defendant’s condition. He also said that those suffering from dementia can have periods of lucidity as dementia waxes and wanes, and those periods “certainly might be a little bit longer” in the early stages of dementia. The doctor was given a hypothetical based on the manner in which defendant was driving during the pursuit and he was asked whether someone whose lacks judgment and may not know what’s going on could be capable of such activities. He responded that it would be less likely at the more advanced stages and that it takes a lot of cognitive ability to do what defendant did during the pursuit.
During redirect examination, the doctor gave the following contradictory statements about the effect of his knowing that defendant had previously faked a mental illness in order to avoid being sent to prison on his opinion that it was unlikely that defendant was faking dementia now, “No. It’s certainly a red flag. From what I’ve seen in the chart and what I’ve discussed with the [physician’s assistant] and the people in [defendant’s medical housing unit], at this time there isn’t.... [H]e’s a little young for this.... As far as I know, there has been no behavior observed that would make us think he was malingering.” He added that the physician’s assistant had requested a neurology consult, but one had not yet occurred.
During the post-verdict hearing on defendant’s motion to dismiss two of his three strikes, the trial court commented, “[T]he doctor[’s]... description of [defendant’s] dementia and the extent to which he’s affected by dementia is apparently about the same degree to which I’m affected by dementia.... I don’t recall numbers as well as I used to. I pretty much write things down if I really want to be sure that I remember them.... [A]t the age of 62, I find it’s important for me to rely on other things to remind me of what’s important to do. [¶] Nothing that... the doctor testified [to] here suggested that [defendant] was incapable of remembering that he was supposed to stop at a red light or to stop when sirens were behind him or to yield to traffic when he finds himself speeding the wrong way on a street or passing people on the curb, passing people in very bad visibility.” While we are in no position to comment on the accuracy of the trial court’s comments about its own condition as compared to defendant’s, its comments about the doctor’s testimony were entirely accurate.
Just after the doctor had testified on cross-examination that there was only one nurse for all 150 inmates in defendant’s medical housing unit at jail, the trial court interrupted a question by the prosecutor saying, “Just one second. Let’s all raise our voices a little bit, and this—I know it seems like it’s really exciting testimony to the average person, this discussion of dementia, but based on the fact that at 62, ... I just found out that I’m suffering from some amount of dementia also, and I want to raise the level a little bit, so that we all—I mean, it’s sort of warm in the court. Let’s all take a breath. Let’s all—everybody feel refreshed? Ready to continue? Breathe in. Don’t every forget to breathe. All right. [¶] Go ahead with your questions please. I’m sorry I interrupted you.”
At the conclusion of the doctor’s testimony, he said to the trial court, “Sorry about that whole brain thing.” The court responded, “I mean, I think you could have passed me a note if you’re going to give me bad news. I’m the only one close to being that old.” The doctor then said, “Makes a good excuse too.” The court then asked the doctor, “Would you mind writing that down on that piece of paper for me?” The doctor responded, “Sure.”
In his motion to dismiss defendant’s strike priors, defense counsel categorized what we presume was this colloquy as, “[the d]octor’s testimony that... [the trial j]udge [was] suffering from normal brain atrophy dementia....” Defense counsel also stated in the motion that the doctor had “assert[ed] that [the trial j]udge has the same medical condition as the defendant....” This “assertion” is not part of the record before this court, but explains the comments made during this colloquy between the doctor and the trial court.
We quote the colloquy between the trial court and the doctor to demonstrate the spirit in which the trial court made its first set of remarks, which defendant now claims entitles him to reversal of his conviction. The trial court was making light of its own situation. Had the doctor been able to testify that one suffering from the early stages of or a small amount of dementia would be unable to know what was going on around them, we might feel differently about the court’s remarks. But he was not. In fact, he was unable to tie the severity of the condition to anything defendant might have been thinking or doing during the pursuit. Based on other things the doctor said, any reasonable person would conclude that the stage of dementia during which one is unable to know what is going on is an advanced state and the doctor did not testify that defendant was at such a state.
See footnote four, ante, page eight.
As to the rest of the trial court’s statement, it was a June day in Victorville and, according to the record, the courtroom was quite warm. It may have been that some jurors appeared not to be paying attention to the doctor or nodding off during his testimony and the trial court wanted to get everyone to pay attention to what he was saying.
To the extent that the trial court’s remarks may have suggested something negative to the jury about the doctor’s testimony, we conclude that it was not prejudicial, the issue of forfeiture for failing to object below aside. Setting forth in excruciating detail the doctor’s testimony demonstrates the weakness of his testimony, which leads us to conclude that however any juror might have interpreted the trial court’s remarks, defendant would not have enjoyed a different outcome had they not been made. (See People v. Melton (1988) 44 Cal.3d 713, 736.) The doctor’s testimony boils down to a conclusion reached by a physician’s assistant after talking with defendant and conducting “limited” cognitive testing on him for about 40 minutes, along with reports by a nurse or nurses in defendant’s medical housing unit that occurred months after the physician’s assistant had reached her conclusion about defendant. Neither the physician’s assistant nor this nurse or nurses were made available for cross-examination, particularly significant as to the former, for it is she, alone, who made the “diagnosis” to which the doctor, who had never talked to defendant, merely agreed. Moreover, the doctor’s conclusion that defendant had mild to moderate dementia had no significance as he did not correlate that to the possibility that defendant did not recognize the police officers involved in the pursuit as police officers (and their vehicles as police vehicles). And, there was a good deal of evidence suggesting that defendant knew exactly what he was doing and was in full control of his facilities at the time of the pursuit, including his ability to maneuver in and out of traffic in the rain at dangerous speeds in moderate traffic while being chased by law enforcement, responding appropriately (albeit, at times, stubbornly) to the arresting officer’s commands, and asking entirely pertinent and appropriate questions, like whether his car was going to be towed. Added to this are the facts testified to by defendant’s wife of 20 years that defendant drove her to work that morning in Colton, dropped his grandson off at the latter’s work, then drove to the San Bernardino Police Department where he had a pre-arranged 9:00 a.m. or 9:30 a.m. appointment “to register, ” then planned to visit his father in Victorville, near Apple Valley (50 miles from the wife’s workplace). These are not the activities of a person who is so out of it that they do not know what they are doing and do not know that police officers are chasing them. As the doctor testified, one does not slip in and out of dementia suddenly. The fact that defendant could do all these things throughout the day on December 7, then maneuver himself through a high speed chase without hitting anyone or anything, then act appropriately and ask pertinent questions after such a chase, makes any possibility that the jury would have concluded that defendant lacked the intent to evade a police officer based on the doctor’s testimony, but ignored that testimony due the trial court’s remarks, beyond far-fetched. When the fact that defendant faked a mental illness to escape prison is added to the mix, a fact which even the doctor stated “raised a red flag, ” the conclusion is inescapable. Added to this is the instruction to the jury that they were to decide the case on the evidence presented, i.e., sworn testimony, exhibits, anything else the trial court said was evidence, and nothing else. Added to this was the judge’s instruction, “Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.”
See footnote four, ante, page eight.
In denying defendant’s post-verdict motion to dismiss two of his three strike priors, the trial court said, in addition to its comments about the doctor’s testimony (see fn. 4, ante, p. 8), “[Defendant] was able to negotiate that street so well in his very competent efforts to avoid capture by the police that it seems to me that [defendant] was doing just fine. I don’t know that I could have driven like that. I don’t know if I could have avoided the police for as long as he did, but finally they were able to box him in to get him to come to a stop, driving his car in the pouring rain, subjecting people to great possibility of injury and death. [¶]... The Court heard the evidence that [defendant] has found it in this best interest previously to be a malingerer to... beat a [murder] trial.... To... avoid punishment for murder by way of not guilty by reason of insanity.... [T]hen making comments that he would be able to do the same thing in this case.... [¶]... [Defendant] is a malingerer....”
Having so concluded, we necessarily also reject defendant’s assertion that his trial counsel’s failure to object to the trial court’s first set of remarks requires reversal of his conviction because, for the reasons already stated, if counsel had objected and gotten the remarks stricken from the record, there is no reasonable probability defendant would have enjoyed a different outcome. (Strickland v. Washington (1984) 466 U.S. 668, 688.)
2. Ineffective Assistance of Trial Counsel for Failure to Introduce Evidence Rebutting Testimony That Defendant’s Driver’s License Had Been Suspended for Driving Under the Influence
Before trial began, the People sought permission to introduce evidence that, at the time of the pursuit, defendant was driving under the influence of alcohol and with a suspended license as evidence of his motive for evading the police. At the hearing on the admissibility of this evidence, defense counsel represented to the trial court that defendant did not know that his license had been suspended and it had been because his wife had not paid for insurance and “because of [defendant’s] prior convictions.” The prosecutor responded that defendant was mailed notice of the suspension by the Department of Motor Vehicles (DMV) on October 20, 2009. The trial court ruled that the evidence was admissible and it was for the jury to determine whether defendant was aware that his license had been suspended.
The officer who arrested defendant testified that defendant’s driver’s license had been suspended due to a previous driving under the influence conviction. During the testimony of defendant’s wife, she stated that in November 2009, she found an envelope from the DMV containing a report concerning defendant’s license. She said she read the report from the DMV. The trial court sustained the prosecutor’s hearsay objections to defense counsel’s questions as to what the report said and whether the report stated that defendant’s license had been suspended. She testified that defendant did not read the report because she did not give it to him. The trial court sustained the prosecutor’s lack of personal knowledge objection to defense counsel’s question to the wife whether defendant had knowledge on December 7, 2009 that his license had been suspended.
The People incorrectly state that her testimony that she read the report was stricken as a result of the prosecutor’s hearsay objection. In fact, the prosecutor did not object to this testimony and it was not stricken.
Defendant here contends that his trial counsel’s performance was deficient, but he ignores something counsel, himself, had said during the pretrial hearing, i.e., that defendant’s license had been suspended, in part, because of his prior convictions. Ignoring this, defendant here asserts that the only reason his license was suspended was because his wife failed to pay the insurance premium. He also points to the probation report, which lists no convictions for driving under the influence. Springboarding from the assumption that defendant’s license was suspended only because his insurance premium had not been paid, he criticizes his trial counsel for failing to produce the report from the DMV to prove that the suspension had nothing to do with his prior conviction. However, absent a showing that the report stated that defendant’s license was suspended for a reason other than his previous convictions for driving under the influence, we cannot determine that counsel acted ineffectively in not producing it. Moreover, while such proof would have rebutted the officer’s testimony that the license was suspended for a prior DUI, it would not have affected the reason for admission of the testimony that the license had been suspended, i.e., that the fact that defendant was driving with a suspended license, whatever the reason for the suspension, motivated him to evade the police. It just would have rebutted the officer’s testimony that defendant had been previously convicted of DUI. However, given that the same officer testified that defendant had symptoms of driving under the influence during the pursuit, and defendant’s behavior during the pursuit, the prejudicial impact of this aspect of his testimony was not great.
The remaining matter is defendant’s knowledge of the suspension. We are perplexed by defendant’s assertion that production of the DMV records by his trial counsel “would have gone a long way to establish that [defendant] had no knowledge his license was suspended.” Actually, the only potentially persuasive way for defendant to prove that he was unaware of the suspension would have been for him to testify to that fact at trial, because his wife would have remained unable to testify to the contents of the report she claimed she found in November and did not share with him. Defendant would have also had the hurdle of demonstrating that he did not see the report in his home before his wife discovered it and kept it from him, and, again, this only could have come from him. However, he was unwilling to take the stand. Defendant points to no other evidence that would have shown he was unaware of the suspension, other than the speculative implication created by his wife’s testimony. Under these circumstances, we cannot conclude that trial counsel was deficient.
Defendant’s speculation that if his license had been suspended because of a DUI conviction, he would have known about it because he would have had to go through an administrative proceeding before it was suspended but if it had been suspended due to his failure to pay his insurance premium, the only notice he would have received would have been the October 20, 2009 report from the DMV is insufficient to carry the day. Additionally, it makes no sense to this court that the DMV would somehow come across information that a driver’s auto insurance premium had not been paid with no interaction between the driver and it or any law enforcement agency and would then suspend the driver’s license with nothing more than one mailed notification.
3. Exclusion of Evidence
During direct examination of defendant’s wife, defense counsel asked her if defendant was on any medication on the day of the crime. The trial court sustained the prosecutor’s relevancy objection. Defendant now claims that his conviction should be reversed due to this ruling. We disagree.
Defendant made no offer of proof below as to what medication he was taking and what expert would be testifying for the defense that this medication impaired defendant’s judgment. Defendant’s assertion that in his trial brief, he represented to the court that he was taking medication for pneumonia which could have affected his blood alcohol level is not a sufficient offer of proof because it does not address the effect this medication had on whether he formed the mental state necessary for evasion.
4. Jury Instruction
a. On Voluntary Intoxication
The jury was instructed that in order to convict defendant of evading the police, it had to find that he “willfully fled from, or tried to elude the officer, intending to evade the officer” and he drove “with willful or wanton disregard for the safety of persons or property.” In its oral instructions to the jury, willfully was defined as doing something “intentionally or on purpose.” In the written instructions, it was defined as doing something “willingly or on purpose.”
Defendant’s proposed instruction on willful intoxication made no sense and read as follows, “You may consider evidence, if any, of the defendant’s voluntary intoxication only in... deciding whether the defendant acted or failed to do an act with willfully fled from, or tried to elude, the officer, intending to evade the officer. During the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property.”
The instructions were discussed off the record, during which time the trial court told counsel what instructions it intended to give. We presume that the instructions which were given were those. On the record, the trial court asked counsel if either had comments about the instructions the court planned to give. Defense counsel said he did not.
The trial court gave the following instruction on voluntary intoxication, “You may consider evidence, if any, of the defendant’s voluntary intoxication only... in deciding whether the defendant acted with willful or wanton disregard. [¶]... [¶] You may not consider evidence of voluntary intoxication for any other purpose.”
Defendant here concedes that there is no sua sponte duty to instruct on voluntary intoxication as a defense to specific intent or mental state, however, he asserts that the trial court must give the instruction upon request when there is supportive evidence. Even if we considered defendant’s proposed instruction to be a request that the jury be directed that it could consider his voluntary intoxication in deciding whether he willfully fled from or tried to elude the officer, intending to evade, there was no evidence that defendant was so intoxicated that he did not act willfully/intentionally or on purpose or had no intent to evade. “A defendant is entitled to [an instruction on voluntary intoxication] only when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s ‘actual formation of specific intent.’ [Citations.]... Assuming th[e] scant evidence of defendant’s voluntary intoxication would qualify as ‘substantial, ’ there was no evidence at all that voluntary intoxication had any effect on defendant’s ability to formulate intent.” (People v. Williams (1997) 16 Cal.4th 635, 677-678.) Therefore, there was no duty to so instruct.
Defendant asserts that the doctor testified that defendant’s use of alcohol made his dementia worse. The following is the only testimony the doctor offered on this subject,
More importantly, the instruction defendant now suggests should have been given was legally incorrect. Evidence of voluntary intoxication was not admissible on the issue whether defendant willfully fled from the officers. Penal Code section 22, subdivision (b) provides, “Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent... .” Acting willfully is not a specific intent for which voluntary intoxication evidence is admissible. (People v. Atkins (2001) 25 Cal.4th 76, 85, 86, 91.) A slightly more difficult question is posed by the requirement that the defendant “fled from... the officer, intending to evade the officer.” However, “‘[w]hen the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a further consequence, ... [t]his intention is deemed to be a general criminal intent’” for which evidence of intoxication is inadmissible. (Id. at p. 82.) The intent to evade the officer is inextricably intertwined with the act of fleeing from an officer. Therefore, the intent to evade is not a further act or consequence in addition to the act of fleeing from an officer. It is telling that in the instructions provided to the jury, the lesser included offense of misdemeanor evading, which only lacks felony evading’s element of driving in wanton and willful disregard, but has it’s element that defendant “willfully fled... intending to evade” was classified as a general intent crime. It is further telling that defendant requested this instruction.
b. On Mental Disease
The instruction, which defendant requested, on mental disease provided, “You have heard evidence that the defendant may have suffered from a mental disease.... You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted or failed to act with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted... with the required intent or mental state, specifically: willfully fled from, or tried to elude, the officer.... During the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property. If the People have not met this burden, you must find the defendant not guilty....”
The instruction the trial court actually gave, to which defendant voiced no objection, was, “You have heard evidence that the defendant may have suffered from a mental disease.... You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted... with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted... with the required intent or mental state, specifically:... willful or wanton disregard.... If the People have not met this burden, you must find the defendant not guilty....”
In short, defendant claims he was entitled to have the instruction on mental disease applied to both the requirement that he willfully fled or tried to evade and that he drove with willful, wanton disregard for safety. The instruction the trial court gave applied it only to the latter.
Penal Code section 28 provides, “Evidence of mental disease... is admissible solely on the issue of whether or not the accused actually formed a required specific intent... when a specific intent crime is charged.” For the reasons already explained in relation to the previously discussed jury instruction issue, no specific intent was involved in defendant willfully fleeing intending to evade the officer. Therefore, the trial court correctly refused to apply the mental disease instruction to this element of the charged crime.
c. On Expert Testimony
Defendant requested that the standard instruction on expert testimony be given, which provides, “A witness was allowed to testify as an expert and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. [¶] An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the expert’s opinion. [¶] If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters on which each witness relied. You may also compare the experts’ qualifications.”
Of course, the last paragraph of this instruction should not have been given as it was not supported by the evidence. We further note that the only one who asked the doctor a hypothetical question was the prosecutor.
Defendant contends that the failure to give this instruction requires reversal of his conviction. We agree with the People that the failure to give it was harmless. The instruction is so neutral in its directive, the doctor’s testimony so unpersuasive and the evidence supporting guilt so strong that we cannot conclude, based on the entire record, that the jury might have rendered a different verdict had it been given. (See People v. Williams (1988) 45 Cal.3d 1268, 1320.)
5. Sentencing
a. One Year Term Under Penal Code section 667.5, subdivision (b)
Defendant was charged, pursuant to Penal Code section 667.5, subdivision (b), with having suffered a conviction in Case No. FSB 10680 on May 11, 1998 of violating Penal Code section 289, subdivision (a) in San Bernardino. He was also charged with four strike priors arising from the same case, one of which was the same Penal Code section 289, subdivision (a) conviction, and the others were convictions of Penal Code sections 220, 261, and 288a, subdivision (c). Defendant waived his right to a jury trial on all the priors. The trial court then said to defendant, “It’s alleged that in Case FSB10680 that you were convicted of a violation of Penal Code section 289, Sub[division] A, .... I’m looking at the abstract of judgment, and [it] shows that [defendant] was sentenced on Penal Code section 220, assault with intent to commit rape. That’s Count I. Count II is P[enal ]C[ode section] 261(a)(2), forcible rape, and [Count] IV, Penal Code section 288(a)(c), forced oral copulation. [¶] Those are the three crimes... that the records indicate he was convicted of... in San Bernardino County.... [¶] That’s what I have. Now, that’s [Penal Code section] 261, so that’s–three separate counts.” The prosecutor agreed that that was what her records showed. The trial court resumed, “The first alleged qualifying strike is a P[enal] C[ode section] 289(a), ... [p]entration by a foreign object.... The Information did charge attempted 289(a), so I’m not going to go through the ones that... we’re not trying to prove. You’re going on the three that are on the abstract of judgment. Defendant then admitted that he had been convicted of violating Penal Code section 220, assault with intent to commit rape, section 261(a)(1), forcible rape, and section 288(a)(c), forced oral copulation in FSB 10680. The court then asked defendant, “Do you further admit that you went to prison in... that case and you failed to remain free of prison custody for a period of five years before the commission of this offense?” Defendant said, “Yes.” Defense counsel joined in defendant’s admission.
In their opposition to defendant’s motion to dismiss the strike priors, the People represented that defendant was convicted only of violations of Penal Code section 220, 261, subdivision (a)(2) and 288a, subdivision (c) [sic] in the prior case. No mention is made of a conviction under Penal Code section 289, subdivision (a). On the other hand, defendant’s probation report shows that he was convicted in the prior case of a violation of “P[enal] C[ode section] 289(a), [s]exual [p]enetration [by a f]oreign [o]bject with [f]orce” as Count I” along with the other three crimes.
At the beginning of the sentencing hearing, the trial court said that it thought it had found true that defendant had been convicted of a prior strike under Penal Code section 289, forced oral copulation. The prosecutor corrected the trial court, saying, “It was not the 289 that was alleged on there. It was the 220, the 261(a)(5) and 288(a)(c).” Defense counsel agreed. The trial court added one year to defendant’s sentence under Penal Code section 667.5, subdivision (b) for not remaining free from custody for five years after beginning his sentence in FSB 10680 and committing the current offense.
Defendant asserts that since he did not admit having been convicted of a violation of Penal Code section 289, subdivision (a), as alleged in the Information, he should not have been sentenced for the enhancement under Penal Code section 667.5, subdivision (b). The People assert that despite the Information, defendant admitted suffering the other three convictions in FSB 10680 and not remaining free from custody for five years between the sentence in that case and the commission of this offense, therefore, the one year term was correctly imposed. The People add that the Information’s reference to defendant’s conviction of a violation of Penal Code section 289, subdivision (a) is a “clerical error” and his attorney’s failure to contest the imposition of the one year term below constitutes a forfeiture of the issue.
Penal Code section 667.5, subdivision (b) provides, in pertinent part, “[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison term therefore, the court shall impose a one-year term for each prior separate prison term served for any felony....” (Italics added.) Subdivision (d) provides, in pertinent part, “The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted... in the action for the new offense.” (Pen. Code, § 667.5, subd. (d).)
Thus, defendant’s reliance on Penal Code section 1025, which provides that a prior conviction must be proved or admitted by a defendant, is inapplicable. In People v. Epperson (1985) 168 Cal.App.3d 856, 865, the appellate court pointed out, “[Defendant] admitted only the fact of each of his convictions and not the existence of the requisite prison term served and the nonexistence of the five-year ‘washout’ period. [His] affirmative responses to the trial court’s questions [whether he had suffered those convictions] do not represent admissions to all the allegations, including the five-year ‘washout’ allegations, pertaining to the Penal Code section 667.5, subdivision (b), priors charged in the information. Thus, we cannot view [defendant’s] admissions of the ‘convictions’ as including admissions of all the necessary elements alleged under Penal Code section 667.5, subdivision (b).”
In People v. Mancebo (2002) 27 Cal.4th 735, the information failed to expressly allege that defendant had committed sex offenses against more than one victim, thus entitling the defendant to treatment under the one strike provisions of Penal Code section 667.61, subdivision (e)(5), although the sentencing court used that subdivision in calculating defendant’s sentence based on the fact that the jury’s verdicts in fact established that defendant had victimized more than one person. (Mancebo at pp. 738-739.) The California Supreme Court noted, “The plain wording of subdivisions (f) and (i) of section 667.61 together controls here.” (Id. at p. 743.) Subdivision (i) required “the existence of any fact required under subdivision... (e) shall be alleged in the accusatory pleading and... admitted by the defendant....” Subdivision (f) had a similar requirement. (Id. at pp. 743-744.) Our high court concluded, “Substitution of that unpleaded circumstance for the first time at sentencing as a basis for imposing the [sentence] violated the explicit pleading provisions of the One Strike Law.” (Id. at p. 743, italics added.) “[S]uch a substitution, without the defendant’s consent, violates his right to adequate notice of the factual and statutory bases of sentence enhancement allegations brought against him.” (Id. at p. 746, italics added.)
“Due process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise by evidence offered at trial. [Citations.] This means that... an accused cannot be convicted of an offense of which he has not been charged, regardless of whether there was evidence at his trial to show he committed the offense. [Citation.] An exception exists if the accused expressly or impliedly consents or acquiesces in having the trier of fact consider a substituted, uncharged offense. [Citations.] The same rules apply to enhancement allegations. [Citation.]” (People v. Haskin (1992) 4 Cal.App.4th 1434, 1438, italics added.) The California Supreme Court found such notice in People v. Strickland (1974) 11 Cal.3d 946, 961 (Strickland), where the defendant was charged with using a firearm under Penal Code section 12022.5, but he was deemed to have had notice that he was also being charged with being armed under 12022 because “12022 would be applicable in any case in which 12022.5 applies.”
In People v. Riva (2003) 112 Cal.App.4th 981, 1000-1002 (Riva), “The information alleged an enhancement under section 12022.53, subdivision (d) [(discharging a firearm causing great bodily injury)] as to the counts charging [the defendant] with attempted voluntary manslaughter and assault but not as to the count charging... shooting at an occupied vehicle. The verdict forms, however, asked the jury to determine whether the allegations under section 12022.53, subdivision (d) were true or not true as to all three counts. [The defendant] did not object to the verdict form pertaining to [shooting at an occupied vehicle] and the jury found the allegations true as to all three counts. [¶]... [¶]... [O]n the conviction for shooting at an occupied motor vehicle, the court imposed... a consecutive sentence under section 12022.53, subdivision (d)... even though the information did not allege this enhancement as to this count. [¶]... [¶] Section 12022.53, subdivision (j) states: ‘For the penalties in this section to apply, the existence of any fact required... shall be alleged in the information... and either admitted by the defendant in open court or found to be true by the trier of fact.’... Thus, [it]... requires only the facts necessary to sustain the enhancement be alleged in the information; it does not say where in the information those facts must be alleged or that they must be alleged in connection with a particular count in order to apply to that count.... [T]he prosecution complied with the literal language of the statute by alleging the enhancement in the information as to the charges of attempted voluntary manslaughter and assault. [¶] Mancebo is distinguishable because the enhancement the trial court imposed [there] was never pled as to any count by name, number or description of the qualifying circumstances. In the case before us, the enhancement... was pled by number and description as to some of the counts in the information, just not the one on which the trial court imposed it. [¶] The problem in Mancebo... [was] the lack of notice. The trial court could not wait until the time of sentencing to decide what enhancements were necessarily established by the jury’s verdicts. ‘[A] defendant has a cognizable due process right to fair notice of the specific enhancement allegations that will be invoked to increase punishment for his crimes.’ [¶]... [I]mposing the... enhancement in this case did not violate section 12022.53, subdivision (j) or [the defendant’s] right to due process of law. [¶]... [¶] Failure to plead the section 12022.53 enhancement as to the count alleging [the defendant] shot at an occupied vehicle did not interfere with [the defendant’s] ability to contest the factual basis of the enhancement. [The defendant] was on notice he had to defend against the allegation under section 12022.53, subdivision (d), ... because this allegation was pled as to the attempted voluntary manslaughter and assault counts....”
In People v. Jones (2003) 29 Cal.4th 1229, 1259 (Jones), the California Supreme Court concluded that a defendant had waived the issue that the jury’s verdict form was ambiguous, and, therefore, an insufficient basis for his conviction, because he failed to object to it when the trial court proposed to submit it to the jury or when the jury returned it.
Finally, in People v. Ramirez (2003) 109 Cal.App.4th 992, 996 (Ramirez) the defendant was charged with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and leaving the scene of an accident (Veh. Code, § 20001, subd. (a)). He pled guilty to both offenses and made a further admission under Vehicle Code section 20001, subdivision (c) which carried a mandatory five-year enhancement. (Ramirez at pp. 992, 996.) Neither at the time of the plea nor at sentencing when the trial court said it would impose the five-year term under subdivision (c) did defendant complain that he not been charged with a violation of that subdivision. (Ramirez at p. 997.) The appellate court concluded that defendant’s failure to object constituted a waiver and the information sufficiently notified him that he was subject to the mandatory enhancement even though it neither referenced subdivision (c) nor included its language. (Ramirez at pp. 997, 1000.) The court concluded that Mancebo was distinguishable, saying, “[T]he... complaint [here] alleged a violation of section 20001, subdivision (a) but did not specify whether appellant was subject to sentencing under subdivision (b) or... (c) of that statute. Nothing in the complaint affirmatively misled appellant into thinking that he would not be sentenced pursuant to subdivision (c). By his written negotiated disposition, [in which he acknowledged total exposure that necessarily included the five-year term], appellant agreed that subdivision (c) was implicated and that he could be sentenced to 15 years in prison. [Citation.] No due process violation occurred.” (Id. at p. 1001.)
Here, similarly to Riva and Strickland, defendant had been made aware from the time he was first charged that the People would seek to have a one-year enhancement imposed due to his prison sentence in FSB 10680. As a consequence, he cannot claim lack of notice of the enhancement or that an unpleaded circumstance was first used at sentencing. There is no prohibition on using one or all three of defendant’s admitted convictions in FSB 10680 as both strikes and as the basis for a prison prior enhancement under Penal Code section 667.5, subdivision (b). (People v. Cressy (1996) 47 Cal.App.4th 981, 993.) Had defendant objected at the taking of his admission or at sentencing, the People could have amended the Information to substitute one of the three convictions he admitted suffering in FSB 10680 for the conviction under Penal Code section 289, subdivision (a). Defendant admitted that he had been sentenced to prison in that case and had not remained free from custody after service of that sentence for five years before committing this crime. Thus, similarly to Jones and Ramirez, he consented to the discrepancy between the allegation in the information and what he actually admitted. The one year enhancement based on this admission was proper.
b. Denial of Defendant’s Romero Motion
People v. Romero (1996) 13 Cal.4th 497.
In his written motion to dismiss two or three of his strikes, defendant contended that his guilty plea in case FSB 10680, which resulted in his conviction of the three strikes, was not voluntary and intelligent. He also asserted that his conduct during the crimes which comprised the three strikes justified dismissing them now as strikes. He abandoned these contentions at the hearing on the motion, instead, merely asserting that the three strikes resulted from one incident and he did not undergo a trial for them, because he pled guilty. He also repeated the assertion he made in his written motion that he currently suffers from dementia.
The trial court rejected the latter as a reason for dismissing his strikes, saying “Nothing that... the doctor who testified here suggested that [defendant] was incapable of remembering that he was supposed to stop at a red light or to stop when sirens were behind him or to yield to traffic when he finds himself speeding the wrong way on a street or passing people on the curb, passing people in bad visibility. [¶] [Defendant] was able to negotiate that street so well in his very competent efforts to avoid capture by the police that it seems to me that [he] was doing just fine.... [¶]... The Court heard the evidence that [defendant] has found it to be in his best interest previously to be a malingerer to... avoid punishment for murder by way of [pleading] not guilty by reason of insanity.... [T]hen making comments that he would be able to do the same thing in this case. That’s the evidence that I heard. [¶] So I’ll just make it clear my finding in deny[ing] your motion to [dismiss] the strike[s] is in part based on my belief that [defendant] is a malingerer....” Defendant’s criminal record, apart from the murder case and FSB 10680, is extensive and covers a period of 40 years. He claimed to the probation officer in this case that he had no recollection of the crime or of his extensive criminal record. He made no statement of remorse for his actions in this case and, according to the probation report, he showed no signs of remorse. According to the probation report, the only medication defendant was then on at the jail was for Hepatitis C.
This was based on a statement by the probation officer in FSB 10680 that, “‘[D]efendant has acknowledged that he feigned (or pretended) mental illness [in an earlier case] in order to go to a mental hospital than to state prison for killing someone, subsequently realizing that he had fooled himself [in that] he wound up spending ten years in the hospital rather than three years in state prison.... [I]t is noteworthy that he has been sufficiently articulate, intelligent, and manipulative to convince a psychiatric technician to secretly marry him while he was in the mental hospital in which she was working.’” It appear that this psychiatric technician is the wife who testified for defendant in the instant trial
Defendant here contends that the trial court’s ruling was so irrational and arbitrary that no reasonable person would agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 376.) It was most decidedly not.
Defendant correctly points out that there was no evidence that he made comments that he would be able to feign dementia in this case in order to avoid the consequences of his actions. However, that did not form the basis for the trial court’s decision not to dismiss his strikes. The trial court rejected defendant’s motion because it concluded that he exaggerated his condition and he did not suffer at the time of the crime from dementia to the degree that he was unable to know he was being pursued by the police and to obey the traffic laws. The evidence presented at trial and information contained in the probation report fully support both of these conclusions, therefore, the trial court’s ruling was not one that no reasonable person could have reached.
In fact, it was the probation officer who said, “[Defendant’s] denials of any wrongdoing and current alleged Alzheimer’s where he cannot remember any of his criminal history would appear to represent a continuance of his manipulative techniques from previous years.”
6. Cumulative Error
Having concluded that the errors to which defendant draws our attention are non-existent, we necessarily conclude that their cumulative impact does not require reversal of his conviction.
Disposition
The judgment is affirmed.
We concur: HOLLENHORST J.RICHLI J.
“Q [THE PROSECUTOR]: [W]ould the use of alcohol affect dementia?
“A [THE WITNESS]: I think it’s safe to say it would affect judgment like it would with anybody else. If you start with already impaired judgment, I think it would make things worse. I think that’s safe to say.
“Q [THE PROSECUTOR]: In general, it would affect someone with dementia in the same way that it would affect... [¶]... a normal person?
“A [THE WITNESS]: Yes.
“Q [THE PROSECUTOR]: So a 0.16 blood alcohol level would affect someone with dementia the same way it would someone without dementia?
“A [THE WITNESS]: They would be drunk.”
There was no evidence that defendant had a blood alcohol level of 0.16 or any level above the legal limit and the charges that his blood alcohol level exceeded 0.08 percent and that he drove under the influence of alcohol were dismissed.