Opinion
B159220.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. LORENZO COURSE, Defendant and Appellant.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Richard T. Breen, Deputy Attorney General, for Plaintiff and Respondent.
A jury found Lorenzo Course guilty of petty theft with a prior theft conviction (count 1) and misdemeanor driving under the influence of alcohol or drugs (count 2). (Pen. Code, § 666; Veh. Code, § 23152, subd. (a).) The jury also found that he was sane during the commission of these offenses. In a separate proceeding, the trial court found he had suffered two prior serious felony convictions for robbery and had served one prior prison term. (& sect;§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i); 667.5, subd. (b).) The court dismissed one of the two prior strike convictions and sentenced appellant to an aggregate prison term of seven years.
Appellant contends the trial court erred in denying his motion for a mistrial based on the prosecutors improper reference to his prior armed robbery convictions and by instructing the jury with an incorrect definition of insanity. We affirm.
Facts
I. The Guilt Phase
Shortly after midnight on April 24, 2001, appellant entered a Sav-On drugstore in Long Beach. He was carrying two bottles of liquor, which he set down near the registers. He repeatedly yelled, "Rose did this shit," or "Fucking Rosa did this," as he walked through the store. Appellant went to the liquor section where he pulled five bottles of tequila from the shelves and broke a sixth bottle in the process. Clutching the five bottles to his chest, he exited the store without paying for the liquor, continued to yell and rant, and drove away in a brown Ford Bronco. A Sav-On employee reported the incident to the police.
Approximately 10 minutes later, the police stopped the Bronco after it ran a red light at 60 miles an hour. Appellant got out of the car, shouting that he was from the FBI and holding a bottle of tequila in each hand. He continued to act in a bizarre manner and resisted arrest when confronted by the police. The police eventually handcuffed him and placed him in a patrol car.
As the police inventoried appellants Bronco, he kicked out the back window of the patrol car and tried to wiggle out of the opening. He was ordered to get back into the car, but did not comply. When appellant was halfway out of the car, Officer Feria struck appellant with his baton. He continued to struggle and Officer Darwin struck him twice in the chin with his baton. The blows had no effect on appellant. Appellant then freed himself from the car and stood up after overpowering another police officer who was attempting to pull him back into the car. He attempted to flee and was struck in the chest with police batons and a flashlight, again with no effect. Appellant continued to struggle to free himself as police officers tried to bind his legs to prevent him from kicking. Ultimately, it took five or six police officers to subdue appellant and put him in a patrol car with his legs bound.
Long Beach Police Department Officer Christopher Rose, a drug recognition expert, responded to the scene. He observed appellants demeanor and behavior at the arrest scene and later at the hospital. He opined that appellant was under the influence of PCP at the time of his arrest. While appellant was sitting in the patrol car spitting out the window, he stated that he was spitting bullets. At the hospital, appellant told Officer Rose "about a pilot light and his children being killed." He claimed to be a boxer and to work for the FBI, and stated his son was going to play for the Raiders. A blood test revealed that appellant was under the influence of PCP.
At approximately 4:00 a.m., Long Beach Police Officer Hodgson advised appellant of his constitutional rights during the booking process. Appellant appeared to understand, was responsive, and was no longer violent. He waived his rights and stated he needed money to pay his bills and intended to sell the stolen tequila to his aunt.
Appellant presented no evidence on his behalf and stipulated to having a prior theft-related conviction for purposes of count 1 (the theft charge).
II. The Sanity Phase
Clinical psychologist Edward Fischer interviewed appellant about five months after his arrest and reviewed the police reports. Dr. Fischer diagnosed appellant as schizophrenic and suffering from a substance induced psychotic disorder at the time of the incident. He opined that appellants preexisting schizophrenia was exacerbated by his ingestion of PCP and the fact that he had stopped taking his antipsychotic medications (lithium). He concluded that appellant did not understand that committing the theft was wrong at the time and could not control himself "because the PCP exacerbated his schizophrenia." Tests administered by Dr. Fischer revealed that appellants IQ was within the retarded range (under 65). A head injury at the age of 19 also affected his ability to think clearly. Dr. Fischer opined that the combination of appellants schizophrenia, low intelligence, head injury, and PCP use rendered him legally insane on the night of the incident.
Dr. Rose Marie Pitt, a psychiatrist, corroborated Dr. Fischers testimony. She interviewed appellant and examined the police reports. She diagnosed appellant as bipolar with schizophrenic symptoms. Appellant told Dr. Pitt that prior to his crimes he had been prescribed lithium, a medication for bipolar disorder, elavil, an antidepressant, haldol, an antipsychotic, and cogentin, a drug that counteracted the side effects of haldol. Appellant reported that he stopped taking his medications and used PCP, after which he became paranoid. Dr. Pitt stated that PCP use would cause its own psychosis and worsen an existing psychosis.
Appellant related to Dr. Pitt that on the night of the crimes, a voice commanded him to go into the garage and get some liquor bottles to return to the store for a reward. Dr. Pitt noted that upon entering the Sav-On store, appellant drew attention to himself by yelling and acting bizarrely. He became more paranoid and disorganized after breaking the bottle of tequila. He left the store visibly clutching stolen bottles of tequila while yelling and cursing. She believed these actions were inconsistent with the usual conduct of a thief.
Based on his low intelligence, history of psychiatric illness, and ingestion of PCP, Dr. Pitt believed that at the time of his crimes, he did not understand the difference between right and wrong. She also believed appellant was delusional at the time of the crimes. She based this on the fact that appellant related to officers that he worked for the FBI and was spitting bullets from his mouth. She felt his motivation for stealing the liquor, i.e., to pay a gas bill so he would not become homeless, did not make sense and he believed the pilot light on his gas stove was killing his children. She opined that the cause of his behavior was "his mental illness in combination with intoxication with the PCP," but could not say whether one or the other was the cause.
The prosecution refuted appellants insanity defense through the testimony of psychiatrist Kaushal Sharma. Dr. Sharma testified that appellants mental impairment was due solely to his ingestion of PCP. Dr. Sharma reasoned that appellant displayed rational behavior in taking something of value to obtain money for bills and this rational behavior meant he was legally sane. Dr. Sharma also believed that appellant had tried to fabricate symptoms of mental illness during the interview. At the beginning of his examination, appellant feigned not knowing what the word "attorney" meant and acted as if he was confused or saw things. After Dr. Sharma confronted appellant with the fact that he appeared to be exaggerating his behaviors and told him that he was being examined at the request of his attorney, appellant became cooperative and did not repeat the behaviors.
Denial of the Motion for a Mistrial
In the sanity phase, during the prosecutions cross-examination of Dr. Pitt, Dr. Pitt stated that she had relied upon a two-page emergency room report from a hospital in forming her opinion. Over appellants objection, Dr. Pitt answered that the medical report indicated that appellant had been referred to the hospital by his parole officer and that upon examination he had been found not to be paranoid or grandiose. Dr. Pitt also stated that she had read and considered appellants probation report and criminal history, and acknowledged that she generally looked to see if a person had committed specific intent crimes in the past, or had ever been found not guilty by reason of insanity. Dr. Pitt acknowledged that appellant had previously been convicted of specific intent crimes involving theft. The following exchange then occurred:
"[Prosecutor]: And, in fact, they were armed robberies; correct?
"[Defense counsel]: Objection. May we approach?
"[The Court]: . . . Strike that. You have gone far enough on that issue.
"[Prosecutor]: But they were crimes involving taking property from other people?
"[Defense counsel]: Judge, I would ask for an admonishment to the jury, please.
"[Prosecutor]: I agree with that. I think you should.
"[The Court]: Im going to strike that. [P] Hes been talking about past crimes, robberies, dont consider that in any way. I know sometimes when the bell is rung you got it in your head, you got to take it out of your head. I dont want that considered in any way."
Appellant then moved for a mistrial on the ground that the prosecutors question about appellants 10-year-old armed robbery convictions was unduly prejudicial and irrelevant to his insanity defense. The prosecutor responded that although the crimes were over 10 years old, they were relevant to show that appellant had never previously relied on an insanity defense. The trial court denied the motion and found that its earlier admonition to the jury was sufficient to mitigate any prejudice. The court admonished the prosecutor outside the presence of the jury to limit his questions to the one theft-related felony that the jury was already aware of in connection with count 1. Dr. Pitt then acknowledged that she found no history of any finding of insanity in appellants prior criminal record.
On redirect, Dr. Pitt clarified that a review of appellants medical records indicated that his parole officer had referred appellant for a medical evaluation not because appellant was in trouble, but because the parole officer was concerned about how appellant was functioning. Dr. Pitt stated that as a result of that referral, appellant was given trazodone, an antidepressant.
Appellant contends the trial court erred by denying his mistrial motion. He argues the prosecutions use of his medical and probation records as a vehicle to inform the jury of his armed robbery convictions was highly prejudicial and without substantial relevance to the question of his sanity. He argues the courts admonition to the jury fell short of correcting the damage. We disagree.
A motion for mistrial should be granted when the trial court becomes aware of prejudice that cannot be cured by admonition or instruction. (People v. Hines (1997) 15 Cal.4th 997, 1038, 938 P.2d 388.) Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. (Ibid.)
Here, the trial court did not abuse its discretion in denying appellants motion. The court struck the prosecutions question concerning prior armed robberies and immediately admonished the jury to disregard it. Additionally, prior to deliberating, the jury was instructed that questions posed by counsel were not evidence, such questions were not to be assumed true absent an answer, and the jury was "not [to] consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken by the court; treat it as though you had never heard of it." (CALJIC No. 1.02.) During the guilt phase, the jury was made aware that appellant had previously been convicted of a prior theft-related felony. The trial court reasonably concluded that the prejudicial effect of the prosecutions reference could be cured by the above admonitions.
In light of the courts admonitions to the jury, the presumption that the jury followed the instructions, including CALJIC No. 1.02 (People v. Fauber (1992) 2 Cal.4th 792, 823, 831 P.2d 249), the prosecutions reference to prior armed robberies did not amount to prejudicial error under the test enunciated in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.The Supplemental Jury Instruction on the Defense of Insanity
The jury was instructed as to the definition of insanity under CALJIC No. 4.02, as follows: "A person is legally insane if, by reason of mental disease or mental defect, either temporary or permanent, caused in part by the long continued use of [alcohol] or [drugs] or [narcotics], even after the effects of recent use of [alcohol] or [drugs] or [narcotics] have worn off, [he] was incapable at the time of the commission of the crime of either: [P] 1. Knowing the nature and quality of [his] act; or [P] 2. Understanding the nature and quality of [his] act; or [P] 3. Distinguishing right from wrong. [P] [However, this defense does not apply when the sole or only basis or causative factor for the mental disease or mental defect is an addiction to, or an abuse of, intoxicating substances.]"
The jury was also instructed under CALJIC No. 4.03 that "regardless of its duration, legal insanity which existed at the time of the commission of the crime is a defense to the crime."
During deliberations, the jury sent the trial judge the following note: "We would like a definition regarding legal sanity or insanity: If we believe that [appellant] had a mental illness that by itself would not qualify him to be legally insane but after voluntarily taking PCP his condition was exascerbated [sic] to the point of not knowing right from wrong at the time of the crime." The trial court held an unreported discussion of the jurys note with counsel in chambers. Following the unreported discussion, the trial court answered the jurys question as follows: "To be legal insanity the insanity must last longer than the period of time that the drug that induces it remains in the defendants body."
Appellant contends the courts supplemental instruction incorrectly defined legal insanity and the error requires reversal of his conviction. We disagree.
Preliminarily, we reject the Peoples contention that appellant is precluded from raising this issue under the doctrine of invited error because his trial counsel proposed the supplemental instruction. Because the trial courts discussion of the supplemental instruction was not reported, in October of 2002, this court granted appellants motion to augment the record with a settled statement of the in-chambers proceeding. On November 1, 2002, the trial court conducted a hearing with the trial prosecutor and appellants trial counsel to settle the record for purposes of this appeal. At the hearing, the trial court recalled discussing the jurys question and stated its belief that both attorneys had agreed on the language given to the jury. The prosecutor concurred with the courts recollection and added that defense counsel had proposed the language for the instruction.
Defense counsel disagreed. He remembered the discussion but could not recall proffering the language used in the courts response. Defense counsel stated that his usual practice in such situations is to request that the jury be referred back to the standard CALJIC instructions. Defense counsels recollection is reinforced by his May 8, 2002, motion for a new trial in which he cited the courts instructional error as a basis for reversing appellants conviction and complained that the defense had requested that the court respond to the jurys question by merely referring it to the instructions already given.
The trial court did not resolve the disagreement or find that defense counsel had proposed the supplemental instruction. Under these circumstances, we decline to apply the doctrine of invited error. We apply the ordinary rule that jury instructions that affect the substantial rights of the defendant can be reviewed on appeal even in the absence of an objection. (§ 1259.)
Prior to November 1994, a person who was voluntarily intoxicated could be found legally insane, if the intoxication caused a mental disorder that remained after the effects of the drug had worn off: "Settled insanity produced by a long-continued intoxication affects responsibility in the same way as insanity produced by any other cause. But it must be "settled insanity," and not merely a temporary mental condition produced by recent use of intoxicating liquor." (People v. Kelly (1973) 10 Cal.3d 565, 576, 111 Cal. Rptr. 171, 516 P.2d 875, italics omitted.)
In 1994, the Legislature passed section 25.5, which provides in part: "In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall not be found by the trier of fact solely on the basis of . . . an addiction to, or abuse of, intoxicating substances." Section 25.5 changed the rule of People v. Kelly by "erecting an absolute bar prohibiting use of ones voluntary ingestion of intoxicants as the sole basis for an insanity defense, regardless whether the substances caused organic damage or a settled mental defect or disorder which persists after the immediate effects of the intoxicant have worn off." (People v. Robinson (1999) 72 Cal.App.4th 421, 427.)
Here, the jury requested clarification of the definition of insanity if it concluded that appellant had a mental illness that by itself would not qualify him to be legally insane but after voluntarily taking PCP his condition exacerbated to the point where he did not know right from wrong at the time of the crime. The gist of their question was whether they could find appellant legally insane if they found that he was sane when sober, but he did not know right but wrong after he used PCP. The court responded that to be legally insane, "the insanity must last longer than the period of time that the drug that induces it remains in the defendants body." Although the court could have simply referred the jury back to the instructions already given (CALJIC Nos. 4.02 and 4.03), the courts response paraphrased the language in CALJIC No. 4.02 that "[a] person is legally insane if, by reason of mental disease or mental defect, either temporary or permanent, caused in part by the long continued use of . . . [drugs] or [narcotics], even after the effects of recent use of [the same] have worn off, [he] was incapable at the time of the commission of the crime of either. [P] . . . [P] 2. Understanding the nature and quality of [his] act; or [P] 3. Distinguishing right from wrong." The supplemental instruction responded to the jurys question and was consistent with the definition of insanity in CALJIC No. 4.02 and section 25.5. We conclude that, although the instruction was superfluous, it was not an erroneous statement of the law and the court did not err.
We reject appellants contention that the supplemental instruction unfairly underscored the prosecutions theory of the case and precluded a finding that his PCP use combined with his mental disorders caused his insanity. The instructions given by the jury, specifically CALJIC No. 4.02, allowed the jury to find that appellant was legally insane at the time of the crime if it found his mental disorder or disease was caused by a combination of his underlying mental defect or disease and the voluntary ingestion of PCP. The jury was instructed that he was barred from relying on the defense only if the drug abuse was the "sole or only basis or causative factor for the mental disease . . . ." (See CALJIC No. 4.02 as given.) We presume, in the absence of any contrary evidence in the record, the jury understood and followed the courts instructions. (People v. Fauber, supra, 2 Cal.4th at p. 823.) Here, the jury simply rejected appellants defense, and concluded, consistent with Dr. Sharmas testimony, that the sole cause of appellants insanity at the time of the offenses was his voluntary ingestion of PCP.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J., Charles D. Sheldon, Judge --------------- Notes: All further statutory references are to the Penal Code.