Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCN242454 Runston G. Maino, Judge.
McINTYRE, J.
A jury convicted Crystal Lynn Berggren of attempting to evade a police officer while driving recklessly and driving in the opposite lane of traffic. The court suspended imposition of sentence and placed Berggren on probation for three years.
On appeal, Berggren argues she is entitled to reversal because: (1) the trial court prevented the defense expert from fully explaining the basis for her opinion Berggren was in a disturbed mental state at the time of her arrest; (2) she was denied effective assistance of counsel when her trial counsel gave a legally incorrect explanation of the circumstantial evidence instruction during closing argument; (3) the trial court failed to instruct sua sponte on the mistake of fact defense; and (4) cumulative error impacted the jury's determination that she had the specific intent to evade law enforcement, the sole contested issue. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
It is undisputed that Berggren suffers from bipolar disorder. Berggren was admitted to Palomar Hospital pursuant to Welfare and Institutions Code section 5150. According to long-time friend Jennifer Gertsen, Berggren's behavior became progressively worse during her time there. Among other things, Berggren thought she was Jehovah and that her fiancé Darin Morris was Jesus.
The hospital released Berggren after three days, in spite of Gertsen's efforts to have her held longer. Gertsen drove her to Valley Center where Morris's mother, Cathy McCarley, had been caring for Berggren's 20-month-old son while she was in the hospital. Gertsen observed that Berggren was "absolutely" delusional and manic during the drive the worst that Gertsen had ever seen. Berggren wanted to listen to loud music and yelled obscenities out the car window.
Upon arriving in Valley Center, Berggren argued with McCarley over her son's care and told Gertsen that she wanted to go shopping. She initially agreed that Gertsen could drive, but changed her mind and took the car keys. Berggren loaded her son in the car seat while Gertsen tried to convince her not to drive. McCarley took the child out of the car at Gertsen's request. Unable to reason with Berggren, Gertsen went inside the house. She drove away five minutes later. Gertsen followed Berggren in her own car, but Berggren eventually pulled away at high speed. When Gertsen got back to the house, McCarley was on the telephone with the police. Gertsen took the phone and told the dispatcher that Berggren was manic and driving at a very fast speed southbound on Fruitvale Road.
San Diego County Sheriff's Deputy Victor Perry received the dispatch and proceeded to the area where Berggren was last seen. He sighted Berggren's car driving north on Cole Grade Road and made a U-turn to get behind her. Deputy Perry activated his red and blue lights hoping to initiate a traffic stop at the first safe spot to pull over. Instead of stopping, Berggren increased her speed and led Deputy Perry on a seven-mile chase. She drove on Cole Grade Road at speeds of up to 80 miles per hour. On three separate occasions, she crossed the double lines into oncoming traffic to pass vehicles that were driving at the speed limit, including two loaded school buses. Berggren drove around a spike strip which officers deployed at the intersection of Cole Grade Road and Highway 76. Once on Highway 76, Berggren continued to pull away from Deputy Perry at speeds of more than 100 miles per hour, causing other vehicles to swerve off the road.
Deputy Perry eventually backed off to avoid an accident and waited for the helicopter to arrive to trail Berggren. Shortly thereafter, Deputy Perry came upon Berggren's vehicle stopped on a blind turnout. As soon as Deputy Perry stopped his car, Berggren approached him "flailing" her arms and yelling "something about committing suicide." Fearing that Berggren would walk into oncoming traffic, Deputy Perry disabled her with pepper spray and placed her in handcuffs. Once Deputy Perry calmed Berggren, she told him that she needed to check on her friend, Angel Gonzalez, whom she believed was suicidal. On cross-examination, Deputy Perry stated that Berggren was "arguing that she need[ed] to be let go and we need[ed] to go check on Angel." She told him that she was "driving away" in order to save Angel. Deputy Perry verified with two people that Gonzalez was not suicidal. Deputy Perry observed that Berggren seemed to "pretty much" answer his questions appropriately.
At trial, Angel Gonzalez's brother Mark testified that Berggren stopped by his home the day of the incident looking for Angel. Gonzalez observed that Berggren was acting strangely making cat noises, saying that she was pregnant, unbuttoning her pants, and rubbing her belly against his uncle. She left after he told her that Angel had moved. Berggren said nothing to him about Angel being suicidal.
Forensic and clinical psychologist Lynette Rivers testified as an expert for the defense. Based on her interview with Berggren and a review of the police report and the mental health records from the jail, Dr. Rivers concluded that Berggren suffered from bipolar disorder with mania and psychotic features. In her opinion, Berggren's behavior and statements on the day of the pursuit were consistent with someone who was delusional and "actively experiencing psychosis in the context of a manic episode." Dr. Rivers also testified that people who are delusional can still make choices, but those choices are based on a delusional thought process.
DISCUSSION
I. The Court Properly Limited Expert Testimony
Berggren contends that the court did not permit Dr. Rivers to fully explain Berggren's behavior in jail and improperly limited questioning about the facts on which she based her opinion. Specifically, Dr. Rivers was not permitted to testify that while at the Vista detention facility, Berggren was up all night using the jail intercom, laughed giddily and used profanities, flooded her cell twice, danced down the hall, and was preoccupied with Tinkerbell and "'tinkling' as referring to urinating." Berggren argues the limits placed on Dr. Rivers's expert testimony prejudiced her "because the case turned on whether the jury believed [she] was so mentally disturbed that she did not form the specific intent to evade the officer." The issue is properly before us because the substance, purpose and relevance of the excluded evidence was made known to the court during the motions in limine. (Evid. Code, § 354.) Contrary to Berggren's contentions, the court gave defense counsel wide latitude in questioning Dr. Rivers on evidence of which Dr. Rivers lacked personal knowledge. Accordingly, we conclude there was no error.
Evidence Code section 801, subdivision (b) provides that an expert witness may base his or her opinion on any matter "perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates...." The expert may also explain the reasons for his opinion on the record. (Evid. Code, § 802.) Thus, mental health professionals, like other expert witnesses "are entitled to rely upon reliable hearsay, including the statements of the patient and other treating professionals, in forming their opinion concerning a patient's mental state." (People v. Campos (1995) 32 Cal.App.4th 304, 307-308 (Campos).) However, the expert may not present incompetent hearsay evidence "under the guise of reasons" (People v. Catlin (2001) 26 Cal.4th 81, 137) or, on direct examination, reveal the content of reports or opinions prepared by nontestifying experts (Campos, supra, 32 Cal.App.4th at p. 308).
The prosecution moved in limine to limit or exclude portions of Dr. Rivers's testimony. It argued that Dr. Rivers could properly testify as to the documents she considered in forming her opinion on Berggren's clinical diagnosis, including hospital and jail records, but she could not testify as to the specific contents of those documents. Although the court agreed that Berggren's behavior in jail was relevant, it ruled that the defense could not introduce detailed evidence of that conduct through Dr. Rivers's testimony. Immediately prior to Dr. Rivers taking the witness stand, the court explained its earlier ruling: "I think that the doctor can testify she has read this report and this report indicated that your client was 5150 and she met the criteria for it and that she thought... she was somebody that she wasn't, but I don't think she can go through and give all the details about being Tinkerbell and that sort of thing. [¶] I think she can testify that she was acting inappropriately and that she was dancing down the hall...." Questioned further by defense counsel on how to handle record of Berggren's transfer from the jail to the psychiatric unit at Las Colinas, the court responded: "The doctor can testify that your client thought she was Tinkerbell, she can say that she was delusional, acting inappropriately. She can testify about how she knows sheriff's staff doesn't just automatically 5150 someone because they are acting a little strange. You have to be, you know, pretty much over the top." Defense counsel did, in fact, elicit testimony on all these points, at times over the prosecution's objection.
Even if the court erroneously prevented the defense from offering additional facts contained in the jail records, any error was harmless. The facts Berggren now cites as improperly excluded were largely cumulative. Moreover, Dr. Rivers based her expert testimony on her interview with Berggren and reports other than the jail records. The prosecution did not challenge the evidence that Berggren acted strangely at the jail after her arrest. Nor did the prosecution contest Dr. Rivers's diagnosis of Berggren as suffering bipolar disorder with mania and psychotic features. Dr. Rivers testified that people who are delusional can still make choices. Thus, the evidence shows only that Berggren's reasons for evading Deputy Perry were likely the product of her mental disorder; it does not show that she lacked the specific intent to evade Deputy Perry. Accordingly, it is not reasonably probable that Berggren would have obtained a more favorable outcome if additional evidence from the jail records had been admitted. (People v. Watson (1956) 46 Cal.2d 818, 835-836.)
II. Defense Counsel's Closing Argument Did Not Show Ineffective Assistance
The court instructed the jury on circumstantial evidence of mental state in accordance with CALCRIM No. 225, which reads, in part:
"If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
Defense counsel commented on this instruction during her closing argument. She reiterated that:
"[B]efore you may rely on circumstantial evidence to conclude that Mrs. Berggren had the required intent or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that Ms. Berggren had the required intent or mental state. [¶] Now this instruction gets a little in this case because if you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that Ms. Berggren did not have the required intent or mental state, and another reasonable conclusion supports a finding that Ms. Berggren did not [sic], you must conclude that the required intent or mental state was not proved by the circumstantial evidence. Ties into the burden of proof, the presumption of innocence. If two things are equal, you go her way because she's got the presumption of innocence. They have the burden of proof."
Counsel then added the fact that Berggren was delusional.
"However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable; but in this situation, of course what she was thinking was unreasonable because she was delusional. So when you are looking at this instruction, yes, it's absolutely crazy if she said, 'I am flying off to a spaceship.' Yes, it was unreasonable, but what you have to do in this particular case not like other trials but you are jurors in this case is the reasonable would be as it relates to someone that was mentally ill in her mind."
Based on this argument, Berggren argues that defense counsel rendered ineffective assistance by giving "a legally incorrect definition of circumstantial evidence that confused the jury and ultimately led to [her] conviction." There is no merit in this argument.
In order to prevail on a claim of ineffective assistance of counsel, the defendant must show that: (1) counsel's performance fell below an objective standard of reasonableness based on the performance expected of a reasonably competent attorney and (2) defendant was prejudiced in that there is a reasonable probability the result would have been different absent counsel's unprofessional errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 893-694 (Strickland).) Although the right to effective assistance extends to closing arguments, decisions on how to argue to the jury after the presentation of evidence is essentially tactical. For this reason, judicial review of defense counsel's summation is highly deferential. (Yarborough v. Gentry (2003) 540 U.S. 1, 5-6 (Yarborough).) "Reversals for ineffective assistance of counsel during closing argument rarely occur; when they do, it is due to an argument against the client which concedes guilt, withdraws a crucial defense, or relies on an illegal defense." (People v. Moore (1988) 201 Cal.App.3d 51, 57.)
Although defense counsel's argument is not a model of clarity, it is both legally and tactically sound. Thus, Berggren fails to satisfy either prong of the Strickland test for ineffective assistance of counsel. First, there was no misstatement of the law. Defense counsel properly emphasized that to convict, the jurors had to be convinced "that the only reasonable conclusion supported by the circumstantial evidence [was] that Ms. Berggren had the required intent...." Defense counsel then offered the jury another way of viewing the evidence through the lens of a person suffering from a mental illness. Berggren does not explain how this argument misstated the law. Moreover, it was consistent with her theory of the case. The fact that the jury rejected the argument does not mean that counsel's performance fell below an objective standard of reasonableness. The jury verdict had more to say about the state of the evidence. Second, Berggren maintains defense counsel's performance was flawed because "she did not clarify the circumstantial evidence instruction" and therefore confused the jury. The fact appellate counsel might have argued the case differently does not establish ineffective assistance under Strickland. As we explained, we defer to defense counsel's tactical decisions. (Yarborough, supra, 540 U.S. at p. 6.) Third, there was no prejudice. At most, Berggren's delusion that Angel Gonzalez was in danger of committing suicide explained Berggren's actions. It did not excuse what the evidence showed to be her reckless efforts to evade Deputy Perry. Moreover, the court instructed the jury in accordance with CALCRIM No. 200: "You must follow the law, as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." (Italics added.)
III. The Court Had No Duty to Instruct Sua Sponte on Mistake of Fact
Penal Code section 26 provides that "[p]ersons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent," are not capable of committing the crime. We granted Berggren leave to file a supplemental brief on the question whether the court had a duty to instruct sua sponte on the defense of mistake of fact. She asserts that properly instructed, the jury could have concluded that she acted under the mistaken belief that Angel Gonzalez was suicidal and Deputy Perry was escorting her to save Angel. Having considered the parties' supplemental briefing and oral argument, we conclude the court was under no duty to instruct the jury with CALCRIM No. 3406 on mistake of fact.
Even in the absence of a request, the court is required to instruct sua sponte on applicable defenses, including mistake of fact, if it appears that the defendant is relying on that defense, or the defense is supported by substantial evidence, and it is not inconsistent with the defendant's theory of the case. (People v. Sedeno (1974) 10 Cal.3d 703, 716, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684 fn. 12; People v. Pearch (1991) 229 Cal.App.3d 1282, 1299.) When determining whether a defense is supported by substantial evidence, the court should not weigh the credibility of witnesses, and doubts regarding the sufficiency of the evidence should be resolved in favor of the defendant. (People v. Tufunga (1999) 21 Cal.4th 935, 944.) Instead, the court must decide whether "'"there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.'"' (People v. Cole (2007) 156 Cal.App.4th 452, 484.) Although this threshold is not high (ibid.), the record does not support Berggren's claim there was sufficient evidence to support a mistake of fact instruction.
Deputy Perry's description of the pursuit clearly showed that Berggren was attempting to get away from him. Deputy Perry activated the red and blue lights on his patrol car, but Berggren increased her speed. She steered around the spike strips officers placed at the intersection of Cole Grade Road and Highway 76 and kept going. At no time did she stop to enlist the aid of Deputy Perry or other law enforcement officers involved in the pursuit in checking on Angel's safety. Nor is there evidence she called 9-1-1. Berggren's actions when she finally pulled over show that Berggren still believed Deputy Perry was working against her efforts to save Angel. Deputy Perry feared she would go into the lane of traffic and used pepper spray to subdue her. Although she told Deputy Perry "[W]e need to go check on Angel Gonzalez," read in context her request clearly focused on what Berggren wanted Deputy Perry to do next. It was not offered by her as an excuse for what had gone before. Thus, even if the jury believed this evidence, it would not raise a reasonable doubt or in any way support the claim that Berggren evaded Deputy Perry and crossed into on-coming traffic under the mistaken belief that Deputy Perry was escorting her to save Angel.
IV. Cumulative Error
Having found no error, we reject Berggren's claim reversal is required on grounds of cumulative error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J.IRION, J.