Opinion
B222613
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM PEREZ COLDHARTE, Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. NA074976
APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Camparet-Cassani, Judge. Affirmed.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant William Perez Coldharte, convicted of burglary and robbery after a two-phase trial to determine guilt and sanity, contends the trial court erred in excluding the testimony of one of his psychological experts. He further contends trial counsel was incompetent for failing to present evidence of his mental deficiencies during the guilt phase to negate intent and for failing to make a more extensive closing argument. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
In August 2007, appellant was charged, along with Billy Ray Atkins, with first degree burglary (Pen. Code, § 459) and first degree residential robbery (Pen. Code, § 211). It was further alleged that appellant had suffered three prior serious or violent felony adjudications within the meaning of section 1170.12, subdivisions (a) through (d), and section 667, subdivisions (b) through (i), and two prior serious felony convictions within the meaning of section 667, subdivision (a)(1), and section 667.5, subdivision (b).
Undesignated statutory references are to the Penal Code.
B. Competence to Stand Trial
Shortly after the information was filed, the court declared a doubt as to appellant's mental competence. In September 2007, appellant was examined by Kaushal K. Sharma, a psychiatrist appointed by the court, who believed appellant was malingering and was competent to stand trial. In October 2007, appellant was examined by another psychiatrist, Jean Carlin, who found appellant mentally incompetent, although she perceived he might have been "acting more limited than he actually [was]." Another psychiatrist examined appellant in November 2007 and agreed with Dr. Sharma. In December 2007, the court found appellant incompetent to stand trial within the meaning of section 1368. In May 2008, appellant was admitted to Patton State Hospital (Patton), where he received further evaluation and treatment. In March 2009, Patton doctors determined that appellant had become competent to stand trial. Pursuant to court order, appellant was re-interviewed by Dr. Sharma and Dr. Carlin, who agreed. In June 2009, the court made the necessary finding of mental competency to allow trial proceedings to commence.
C. Trial
1. Guilt Phase
a. Evidence
Giorgia Winters testified that at approximately 7:30 a.m. on July 13, 2007, she was at home washing dishes. Her husband had just left for work. Her three young children -- a boy age five and fraternal twins age three -- were also in the house. Winters felt a tap on her shoulder. She turned and saw two strange men, appellant and Atkins. Appellant was right behind her, Atkins a little farther back. Winters screamed. Appellant said: "Don't scream, everything will be . . . okay. Just stop screaming" and made a motion with his hands. Winters' oldest son came into the kitchen, and Winters told him that appellant and Atkins were her friends. Appellant said: "Yes, yes, don't worry. We're friends of your mom."
Neither man displayed a weapon. However, Winters was fearful for her life and that of her children throughout the period the two men were in her home.
Appellant and Atkins went through Winters' wallet, taking out credit cards and cash. Appellant was talking primarily to Winters and Atkins was conversing with appellant. At one point, Atkins told appellant not to bother taking a Costco card as "that doesn't give you any money." When the two men spotted Winters' ATM card, appellant told Winters to go to the ATM machine and get money. He said he and Atkins would stay with the children. Winters said she could not leave her children and gave the men her PIN number and the location of the ATM nearest her home, at the corner of Bixby Road and Atlantic Avenue. At that point, Winters and the two men went into her bedroom, where appellant took jewelry from her box. Appellant also asked Winters to give him the rings she was wearing, and she complied. Winters' children began to make noise and she went into the room where they were playing, followed by the two men. Appellant said: "The kids are getting loud. They need to quiet down." Winters told him not to worry about it, they were normally noisy and the neighbors were used to it.
She told the PIN number to Atkins, who appeared to attempt to memorize it.
The ordeal ended when a neighbor who regularly came by while walking his dog came to the front door of the home and knocked. Winters told appellant and Atkins they had to leave and directed them to use the back door and side gate to get to the street. The men complied. Before leaving, appellant said: "I know who you are and I know where you live," which Winters interpreted as a warning against calling the police. The neighbor convinced Winters to call the police, but when they tried, they discovered the telephones had been unplugged. They called 911 using the neighbor's cell phone.
Winters testified the telephones had been plugged in prior to the two men's entry into her home.
Officer Fernando Cook, who was in his patrol car, received a call about the reported crime from the dispatcher and spotted appellant and Atkins near the ATM machine at Atlantic and Bixby. Atkins appeared to be attempting to draw money out. Appellant was standing nearby. Officer Cook drove into the bank's parking lot. Appellant and Atkins started to walk away. Officer Cook got out of his car and ordered the men to stop. Atkins stopped immediately, but appellant continued walking. When the officer drew his weapon and repeated the order, appellant put his hands up. When searched, appellant had two of Winters' rings in his pocket. Officers located Winters' gas card and a plastic bag containing her jewelry and ATM card on the ground in the parking lot not far from where the men were apprehended.
b. Jury Instructions
The jury was instructed that in the crimes charged, "there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator" and that "[u]nless this specific intent exists, the crime to which it relates is not committed." With respect to the crime of burglary, the jury was informed: "Every person who enters any building with the specific intent to steal, take or carry away the personal property of another of any value . . . , and with the further specific intent to deprive the owner permanently of that property or with a specific intent to commit a robbery or a felony is guilty of the crime of burglary . . . . [¶] In order to prove this crime, each of the following elements must be proved: One, a person entered a building; and two, at the time of the entry, that person had the specific intent to steal and take away someone else's property and intended to deprive the owner permanently of that property."
With respect to the crime of robbery, the jury was informed: "Every person who takes personal property in the possession of another against the will and from the person or immediate presence of that person accomplished by means of force or fear and with the specific intent to permanently . . . deprive that person of the property is guilty of the crime of robbery . . . . [¶] . . . [¶] In order to prove this crime, each of the following elements must be proved: one, a person had possession of property of some value, however slight; two, the property was taken from that person or from his or her immediate presence . . . ; three, the property was taken against the will of that person; four, the taking or carrying away was accomplished either by force or fear . . . and five, the property was taken with the specific intent permanently to deprive that person of that property."
c. Pertinent Argument
In closing, the prosecutor argued that evidence of appellant's intent could be derived from the statements he made in the presence of Winters, including telling her not to scream, to keep the children quiet and to go get money from an ATM; telling Winters' five-year old son that he and Atkins were Winters' friends; instructing Winters to remove her rings; and issuing a threat -- "we know where you live" -- before he and Atkins left. The prosecutor also pointed out that appellant had ignored Officer Cook's initial order to stop.
Defense counsel initially asked the jurors to focus on the issue of intent. He directed their attention to the evidence indicating that appellant appeared to need Atkins to tell him which cards in Winters' purse were valuable and to use an ATM. He stated: "That's important." However, he immediately seemed to correct himself and said: "That may become important later, if there are other proceedings in this case."
d. Verdict
The jury found appellant guilty as charged.
2. Sanity Phase
a. Evidence Code section 402 Hearing
During the first stage of the trial, defense counsel announced his intent to call four doctors during the sanity phase. The court asked why he needed four doctors and counsel explained: "One treated him at Patton State Hospital; there's a psychiatrist who treated him who you appointed, Dr. Carlin; there's a psychologist who gave him an I.Q. test; and I may call another doctor who treated him while he was in the county jail." Later, defense counsel specifically asked permission to call Dr. Stephen J. Berger, a staff psychologist at Patton, who had been on the team that ultimately declared appellant competent to stand trial. Counsel represented that Dr. Berger would provide the opinion that appellant was legally insane. The court asked what the basis would be for his opinion. Counsel explained that Dr. Berger had observed appellant over the course of ten months and based his conclusion largely on appellant's I.Q. The court stated there would be a hearing under Evidence Code section 402, and expressed concern that the report prepared by Dr. Berger -- the report declaring appellant competent to stand trial -- did not indicate knowledge of the facts of the case or state whether appellant was legally insane. In a later discussion, defense counsel stated that he intended to limit his inquiry of Dr. Berger to tests given appellant at Patton, particularly I.Q. tests.
At the 402 hearing, Dr. Berger testified he ran groups that appellant was in at Patton in 2008. He administered a test to determine whether appellant truly had a low I.Q. or was malingering, and concluded that appellant was not malingering and had an I.Q. of 54. Dr. Berger believed appellant's I.Q. of 54 placed him on the borderline between mild and moderate retardation. He testified that due to his I.Q., appellant's memory, ability to learn and ability to make judgments were impaired. Dr. Berger had personally observed that appellant was unable to find his way around the unit and had to be reminded daily where he was supposed to go and that he was "a follower [who] would not initiate any activity." Asked by defense counsel whether appellant knew the difference between right and wrong, Dr. Berger stated that he did. He then gave the example of a child accidentally breaking a vase while running around and a child picking up a vase and throwing it down. He stated appellant would know both were wrong, but "I don't know that he would be able to distinguish the quality or the difference of one being that much different."
Dr. Berger later testified that his report of March 2009 diagnosed appellant as having "mild mental retardation."
On cross-examination, the prosecutor asked Dr. Berger if he knew the legal standard for insanity. He initially said he did not know it and then said: "My understanding . . . of insanity is when someone commits a crime, do they understand the nature of what they're doing is right and wrong . . . ." Dr. Berger explained that his primary purpose in evaluating appellant was to determine whether he was competent to stand trial. When asked by the prosecutor whether appellant could distinguish between right and wrong, Dr. Berger testified "not always" and that "sometimes he would do some things that are wrong and not know they're wrong." Asked to state his opinion whether appellant met the legal definition of insanity on July 13, 2007, Dr. Berger initially answered: "I believe he had the ability to know that it was right and wrong. I don't think he had the ability to know the extent that it was wrong . . . ." He said his opinion was based not on the specific facts of the case, but on his personal observations of appellant's cognitive function, which was "pretty stable" over time. When asked by the court what it was about the events of July 13, 2007 that led him to conclude appellant was legally insane on that date, Dr. Berger said he had "no opinion" and further stated he could not render an opinion as to whether appellant was legally insane on that date. The prosecutor presented Dr. Berger with a hypothetical based on appellant's behavior on the day of the robbery as described by Winters. Dr. Berger stated: "He knew he was wrong going in that home. He knew he was doing something wrong. The extent of how serious that crime was, I don't believe he had a full understanding of that."
Dr. Berger had never testified on the issue of legal insanity before.
The court concluded Dr. Berger's testimony was inadmissible because "he says that he has no opinion as to whether [appellant] was legally insane" and "I cannot see how he could possibly assist the jury in any way, nor do I think he's competent enough to render a verdict of whether [appellant] was legally sane or insane based on his own statements, that he had no opinion." Defense counsel stated that he wished to call Dr. Berger to describe his testing of appellant. The court stated: "I'm not going to allow it. You have enough witnesses on that issue . . . . I don't think his testimony is relevant or competent . . . . You have your other two witnesses . . . ."
b. Evidence
The defense called Dr. Carlin. She testified she had seen appellant three times, once in 2007 and twice in 2009, a total of nine or ten hours. She perceived he had limited intellectual functioning. She obtained the results of the I.Q. test from Patton and had a new I.Q. test administered, which resulted in the same score. Appellant's score of 54 placed him on the border between the categories of mildly and moderately retarded. Dr. Carlin compared him intellectually to a child of seven or eight. Based on his score of 54, Dr. Carlin stated that appellant had significant limitations in functioning in society and abstract reasoning and would have trouble functioning or taking care of himself without supervision. People in that category have bad judgment because "[t]hey can't reason and deliberate and anticipate consequences well" and "they don't understand the consequences of their anticipated act." According to Dr. Carlin, appellant seemed to believe that if something was in his hand or if he found a lost object, it was his. As a result of his mental condition, Dr. Carlin believed appellant met the legal definition of insanity and opined that he did not understand the nature and quality of his acts when he went into Winters' home and could not distinguish between right and wrong on that occasion. She later qualified that statement, stating appellant could understand the wrongfulness of his acts on the level of a seven or eight-year old. Defense counsel specifically asked whether, in her opinion, a person who had said and done the things attributed to appellant during the course of a burglary and robbery was legally sane. Dr. Carlin stated that appellant knew he went there to get money, but did not understand how serious it was or that it was illegal and he could get into serious trouble for it.
The defense also called Dr. Bruce Ludmir, a psychologist who was with appellant one and a-half to two hours in order to administer the I.Q. test requested by Dr. Carlin. Dr. Ludmir testified that appellant's score of 54 placed him on the borderline between moderately and mildly mentally retarded and in the lowest one percent of I.Q. scores. That meant his intellectual capability was comparable to a six or seven-year old child. It further meant he did not see cause and effect or understand how his behavior or comments affected people, and that he did not have the ability to plan ahead and think about repercussions or consequences. Dr. Ludmir compared appellant to a young child at a toy store, who grabs a toy and immediately thinks it is his without comprehending the necessity of buying it or paying for it.
The prosecutor called Officer Arturo Trujillo, who had booked appellant after his arrest in July 2007. Officer Trujillo testified that appellant had been cooperative and quiet. Appellant was able to give the officer the information needed to fill out the booking forms, including his name, residence, social security number and emergency contact. Appellant did not report any psychological or mental problems.
The prosecutor also called Dr. Sharma, who had examined appellant three times in 2007 and 2009. Dr. Sharma expressed the opinion that appellant had been malingering, or exaggerating his symptoms of mental illness, in the first examination, but not the latter two. Dr. Sharma believed appellant was primarily suffering from depression and anti-social personality disorder, neither of which caused him to meet the definition of legal insanity. Dr. Sharma's opinion was based largely on the events of the robbery. He testified that appellant's behavior was typical of a burglar or robber who was concerned with obtaining valuables and avoiding being caught. Dr. Sharma described appellant as mildly retarded, which meant he had difficulty performing everyday tasks, but not that he did not know the difference between right and wrong.
In the first interview, appellant claimed not to know his date of birth, how old he was or where he was born. He also claimed to not be able to distinguish colors or to name simple objects, such as paper.
c. Jury Instructions
During the sanity phase of the trial, the jury was instructed: "You may consider evidence of his mental condition before, during and after the time of the commission of the crime as tending to show the defendant's mental condition at the time the crimes were committed." The jury was further instructed: "A person is legally insane when, by reason of a mental disease or mental defect, he was incapable at the time of the commission of the crime of one of the following: one, knowing the nature and quality of his act; or, two, understanding the nature and quality of his act; or three, distinguishing what is legally right from what is legally wrong; or, four, distinguishing what is morally right from what is morally wrong."
d. Pertinent Argument
In closing argument, defense counsel set forth the test for sanity, and reminded the jury of Dr. Ludmir's testimony that appellant "doesn't understand the quality of his acts." He noted that the prosecution's own witness, Dr. Sharma, had testified "you've got to be stupid" to do what appellant had done, and argued that it was appellant's mental defect -- the fact that "[h]e barely functions as a human being" -- that rendered him legally insane at the time of the offense. Counsel invited the jury to observe appellant's demeanor. Finally, noting that his burden of proving appellant insane was only a preponderance of the evidence -- "a slight tipping of the scales" -- counsel urged the jury to find appellant was "legally insane at the time of the commission of the crime."
e. Jury's Finding
The jury found appellant legally sane.
DISCUSSION
A. Exclusion of Dr. Berger's Testimony
"It is fundamental to our system of jurisprudence that a person cannot be convicted for acts performed while insane." (People v. Kelly (1973) 10 Cal.3d 565, 574.) "The test of legal insanity in California is the rule in M'Naghten's Case (1843) 10 Clark & Fin. 200, 210 [8 Eng.Rep. 718, 722], as adopted by the electorate in June 1982 with the passage of Proposition 8. That measure added section 25, subdivision (b), which provides: 'In any criminal proceeding . . . in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.'" (People v. Lawley (2002) 27 Cal.4th 102, 169-170, fn. omitted.) "Despite the use of the conjunctive 'and' instead of M'Naghten's disjunctive 'or,' [the California Supreme Court] has interpreted the statute as recognizing two distinct and independent bases on which a verdict of not guilty by reason of insanity might be returned." (Id. at p. 170, citing People v. Skinner (1985) 39 Cal.3d 765, 769.) In addition, "'[t]he incapacity must be based on a mental disease or defect even though that requirement is not specifically mentioned in [Penal Code section] 25, subd[ivision] (b).'" (People v. Severance (2006) 138 Cal.App.4th 305, 321-322, quoting People v. Stress (1988) 205 Cal.App.3d 1259, 1271.) The defendant's claim of legal insanity presents a factual issue to be decided by the trier of fact. (People v. Kelly, supra, 10 Cal.3d at p. 574.) The burden is on the defendant to prove by a preponderance of the evidence that he was insane at the time of the offense. (People v. Hernandez (2000) 22 Cal.4th 512, 521.)
Appellant contends that by excluding the testimony of Dr. Berger, the trial court prevented him from fully presenting the defense of insanity to the jury, violating his fundamental due process rights. (See In re Martin (1987) 44 Cal.3d 1, 29, quoting Washington v. Texas (1967) 388 U.S. 14, 19 ["'Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.'"].) We disagree.
As discussed, Dr. Berger had previously evaluated appellant to determine whether he was competent to stand trial, but had not, in his report to the court, indicated an opinion as to appellant's legal sanity. The trial court held a hearing under Evidence Code section 402 to determine whether Dr. Berger's testimony would be relevant or helpful to the jury in determining legal sanity. (See Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 469 ["The purpose of such inquiry [into competency] is not to determine guilt or innocence. It has no relation to the plea of not guilty by reason of insanity."].) A court's decision to admit or exclude an expert's testimony after a 402 hearing is reviewed under the deferential abuse of discretion standard. (People v. Hoyos (2007) 41 Cal.4th 872, 910; People v. Williams (1997) 16 Cal.4th 153, 196-197.) The court's determination that an expert has or lacks the necessary qualifications or expertise will be upheld unless it is completely unsupported by the record. (People v. Hoyos, supra, at p. 910.)
The record here supports the court's decision to exclude Dr. Berger's testimony. Dr. Berger admitted his primary purpose in evaluating appellant was to determine whether he was competent to stand trial, not to determine legal sanity. He further acknowledged that he had never testified as an expert on the issue of legal sanity. On cross-examination, the prosecutor asked Dr. Berger if he knew the legal standard for insanity. Dr. Berger was unable to clearly state the standard. During defense counsel's examination, Dr. Berger was asked whether appellant knew the difference between right and wrong. His answer was ambiguous and equivocal. He stated "I don't know that [appellant] would be able to distinguish [between accidently breaking a vase and deliberately breaking one]." On cross-examination, Dr. Berger testified that appellant did not "always" know the difference between right and wrong that "sometimes" he would do things without knowing they were wrong. Asked whether appellant met the definition of legal insanity on July 13, 2007, Dr. Berger said at one point he had "no opinion." At another point he stated "I believe he had the ability to know that it was right and wrong. I don't think he had the ability to know the extent that it was wrong . . . ." At another point, he stated that appellant "knew he was wrong going in [Winters'] home," but did not have a "full understanding" of the seriousness of the crime. Based on this testimony, the court could reasonably conclude that Dr. Berger's testimony would be too equivocal and confusing to be helpful to the jury.
Moreover, even if the court erred in excluding the testimony, it did not prejudice appellant. Dr. Berger would have testified that he administered an I.Q. test at Patton and that appellant scored 54, which placed him on the borderline between mildly retarded and moderately retarded. Both Dr. Carlin and Dr. Ludmir testified to appellant's I.Q. testing, his I.Q. score, and where, in their opinion, his score placed him on the mild to moderate continuum. The prosecution did not dispute appellant's I.Q. score. Appellant notes that Dr. Berger had actually treated appellant and could have confirmed that he was not malingering. The prosecution's expert contended that appellant was malingering only at his initial evaluation in 2007, when he purported to be unable to name colors or everyday items. Dr. Sharma agreed that appellant was as represented at trial -- mentally disabled with an I.Q. score of 54. He expressed the opinion that appellant nonetheless knew right from wrong, primarily based on his actions on the day of the robbery/burglary. Dr. Berger had "no opinion" on that issue. Dr. Carlin and Dr. Ludmir expressed the opinion that appellant was legally insane on that day despite the actions and comments attributed to him by Winters. The jury heard this testimony and rejected it. The jury's decision was fully supported by the evidence of appellant's behavior during the commission of the offenses: he told Winters not to scream, he falsely stated that he and Atkins were friends of Winters, he cautioned Winters to keep the children quiet, and he issued an implicit threat to Winters prior to leaving. In addition, while leaving the ATM he ignored Officer Cook's initial order to stop, complying only when the officer drew his weapon. On this record, it is not reasonably probable that the result would have been any different had Dr. Berger been permitted to give his proposed testimony.
B. Competence of Counsel
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel. [Citations.] The ultimate purpose of this right is to protect the defendant's fundamental right to a trial that is both fair in its conduct and reliable in its result. [Citations.] [¶] Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' [Citations.]" (People v. Ledesma (1987) 43 Cal.3d 171, 215, italics deleted, quoting United States v. De Coster (D.C.Cir. 1973) 487 F.2d 1197, 1202.) "To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Lewis (1990) 50 Cal.3d 262, 288.)
Appellant contends that he was deprived of competent counsel because trial counsel failed to present evidence of his mental deficiencies during the guilt phase of the trial to negate intent, and because counsel failed to adequately argue in support of his position after the close of the sanity phase. We disagree.
1. Failure to Introduce Psychiatric Evidence During Guilt Phase
Preliminarily, we discuss the admissibility of psychiatric evidence during the guilt phase of a trial in view of respondent's suggestion that such evidence is precluded by the enactment of sections 28 and 29, which abolished the diminished capacity defense. Section 28 provides that "[e]vidence 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." The statute goes on to state that "[e]vidence 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." Section 29 provides: "In the guilt phase of a criminal action, any expert testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact."
As our Supreme Court has explained, these provisions preclude, at the guilt phase of trial, "[e]xpert opinion on whether a defendant had the capacity to form a mental state that is an element of a charged offense or actually did form such intent." (People v. Coddington (2000) 23 Cal.4th 529, 582, overruled in part on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046.) "Sections 28 and 29 do not preclude offering as a defense the absence of a mental state that is an element of a charged offense or presenting evidence in support of that defense. They preclude only expert opinion that the element was not present." (Id. at p. 583.) In other words, the provisions "permit introduction of evidence of mental illness when relevant to whether a defendant actually formed a mental state that is an element of a charged offense, but do not permit an expert to offer an opinion on whether a defendant had the mental capacity to form a specific mental state or whether the defendant actually harbored such a mental state." (Id. at p. 582; see People v. Nunn (1996) 50 Cal.App.4th 1357, 1365 ["[T]he sections allow the presentation of detailed expert testimony relevant to whether a defendant harbored a required mental state or intent at the time he acted. Thus, in the present case it was permissible for Dr. Lipson to opine that appellant, because of his history of psychological trauma, tended to overreact to stress and apprehension. It was permissible for him to testify such condition could result in appellant acting impulsively under certain particular circumstances. Dr. Lipson could have evaluated the psychological setting of appellant's claimed encounter with the men at the fence and could have offered an opinion concerning whether that encounter was the type that could result in an impulsive reaction from one with appellant's mental condition. What the doctor could not do, and what the defense proposed he do here, was to conclude that appellant had acted impulsively, that is, without the intent to kill, that is, without express malice aforethought."]; People v. Cortes (2011) 192 Cal.App.4th 873, 908 ["[T]he defendant can call an expert to testify that he had a mental disorder or condition (such as PTSD or dissociation), as long as that testimony tends to show that the defendant did or did not in actuality (as opposed to capacity) have the mental state (malice aforethought, premeditation, deliberation) required for conviction of a specific intent crime (as opposed to a general intent crime) with which he is charged, except that the expert cannot offer the opinion that the defendant actually did, or did not, harbor the specific intent at issue. Put differently, sections 28 and 29 do not prevent the defendant from presenting expert testimony about any psychiatric or psychological diagnosis or mental condition he may have, or how that diagnosis or condition affected him at the time of the offense, as long as the expert does not cross the line and state an opinion that the defendant did or did not have the intent, or malice aforethought, or any other legal mental state required for conviction of the specific intent crime with which he is charged." (Italics deleted.)].)
Although we agree that evidence of mental deficiency may be admissible during the guilt phase, we do not agree that appellant has met his burden of establishing deficient performance on the part of trial counsel or prejudice from failure to present such evidence here. To be guilty of the crime of burglary, the defendant must commit an unlawful entry with the specific intent to commit grand or petit larceny or any felony. (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) To be guilty of the crime of robbery, the defendant must commit an act of force or an act causing fear and have had the specific intent to steal prior to committing the act and to permanently deprive the victim of his or her property. (People v. Huggins (2006) 38 Cal.4th 175, 214.) The evidence was undisputed that as soon as appellant and Atkins illicitly entered Winters' home and subdued her with implicit threats, they began taking her valuables. Appellant in particular took items from Winters' jewelry box and two rings from her person. No testimony from Dr. Carlin, Dr. Ludmir or Dr. Berger suggested that appellant or a person having his mental challenges would be unable to form the intent to commit larceny or to permanently deprive a person of his or her property. Dr. Carlin opined that "I think he knew he went there to get some money."
Moreover, sound trial strategy militated in favor of reserving evidence of appellant's mental condition for the sanity phase. As noted, no evidence of appellant's mental condition suggested he could not or did not form the requisite specific intent to commit the charged offenses, and the prosecution's evidence at trial strongly suggested he did. Introducing evidence of appellant's mental condition in what was likely to be an unsuccessful attempt to negate a showing of specific intent would predictably have blunted the impact of similar testimony in the sanity phase. (See People v. Weaver (2001) 26 Cal.4th 876, 928 [counsel's decision "to reserve the mental evidence for the sanity phase so as not to blunt its impact was not unreasonable" given that "'trier of fact would tend to "treat summarily" such evidence if it were introduced at the sanity phase after the same trier had already rejected it at the guilt phase'"]; People v. Miller (1972) 7 Cal.3d 562, 572 [disclosure of evidence of mental incapacity at the guilt phase would cause it to "'lose much of its impact'" on the trier of fact during the sanity phase].) In the face of obvious tactical reasons for utilizing the experts' testimony solely in the sanity phase of trial, we find no incompetence. (See People v. Lewis (1990) 50 Cal.3d 262, 288, quoting People v. Pope (1979) 23 Cal.3d 412, 425 ["'[Where] the record shows that counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.'"]; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266, quoting People v. Wilson (1992) 3 Cal.4th 926, 936 ["'"[If] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.'"].)
In preliminary remarks to prospective jurors, the court explained that because appellant had pled "not guilty" and "not guilty by reason of insanity," there would be two parts to the trial. "The first part would deal with the issue of whether or not the defendant is guilty or not guilty. . . . [I]f in fact the jury comes back with a verdict of guilty, then there is a second proceeding, wherein the same jury must determine whether or not he . . . is not guilty by reason of insanity." The court explained that at the second proceeding, there would be "testimony from experts from both sides dealing with the issue of the defendant's mental state at the time of the commission of the offense." The court further explained that "[t]he issue of whether or not the defendant is not guilty or not guilty by reason of insanity deals with one time frame, and that is the time frame at which the alleged offenses occurred, not today. His mental state today is irrelevant." A prospective juror asked how "someone can be insane at one particular moment and not be adjudicated insane all the time." The court explained: "[Y]ou [will] hear from experts on that issue, . . . but that concern must be compartmentalized; that is, what you're concerned with at the first phase, which is the phase to decide whether or not the defendant committed the offenses alleged, is just that issue, whether or not those offenses occurred and whether or not it was the defendant who committed them. So the issue of his mental state at that time won't be before you. [¶] Subsequently you will deal with the issue of his mental state at the time of the offenses . . . ."
Appellant contends that trial counsel's failure to object to the court's "egregious misstatement" that mental state would not be an issue in the first phase demonstrated counsel's "lack of understanding of the law." The court's choice of words was poor. However, taken in context, we believe the court was attempting to convey that sanity and appellant's alleged mental deficiencies would be the focus of the second phase of trial, not the first. Counsel could reasonably have interpreted it as a slip of the tongue, not worth objection or clarification. In any event, we do not believe the court's misstatements could have prejudiced appellant as they were made early in the proceedings to prospective jurors, the empanelled jury was fully instructed on specific intent after hearing the guilt phase evidence, and the prosecutor emphasized that intent was an issue for the jurors to decide.
2. Brevity of Closing Argument
Appellant contends defense counsel's closing argument after the sanity phase of the trial was so "perfunctory," "poorly focused," and "confusing" that it established ineffective assistance. A similar argument was made in People v. Weaver, where the defendant contended counsel's argument was "'rambling, unfocused and laced with irrelevant information[,]' that she failed to 'argue or call the jury's attention to important testimony supporting [defendant's] insanity defense,' and that she 'failed to explain the relevant law or to integrate it with the evidence.'" (People v. Weaver, supra, 26 Cal.4th at p. 971.) The court found that counsel's closing argument, taken as a whole, "did not fall below 'an objective standard of reasonableness' under prevailing professional norms." (Id. at p. 973, quoting Strickland v. Washington (1984) 466 U.S. 668, 688; see People v. Mayfield (1993) 5 Cal.4th 142, 186 [court rejected defendant's contention that "defense's closing argument was inadequate in principle because briefly made," noting that "brevity and eloquence are not necessarily inconsistent"].) We reach the same conclusion here. Trial counsel presented a solid case to support insanity. In closing, he argued the points he believed would be most persuasive to the jury, including a seeming concession from Dr. Sharma. We discern no reason to believe the outcome would have been different had he emphasized other points or argued at greater length.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.