Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-067733
BUTZ, J.A jury found defendant Jeremy Lee Dionne guilty of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), assault with a deadly weapon (ibid.), battery with serious bodily injury (§ 243, subd. (d)), and false imprisonment by violence (§ 236), with special findings that he used a dangerous and deadly weapon in the commission of the offenses (§ 12022, subd. (b)(1)). After the trial court denied defendant’s Romero motion to strike all but one of his prior serious felonies, it sentenced him to 41 years to life in state prison.
Undesignated statutory references are to the Penal Code.
People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero).
Defendant appeals, claiming the trial court committed instructional error during the sanity phase of the trial and sentencing errors.
We will direct the court to strike the one-year prison enhancement term under section 667.5, but otherwise shall affirm the judgment.
FACTUAL BACKGROUND
Jeremy Sheffield met defendant in July 2006, when Sheffield was homeless and defendant invited him to stay in his room at a Motel 6. Starting in late January 2007, Sheffield began staying most nights in defendant’s room, and for three weeks they got along fine. Defendant told Sheffield that he “had a bipolar issue” and was given medications, but he did not like to take them. Occasionally, defendant would invite Sheffield to use methamphetamine with him.
On the night of February 16, 2007, defendant, who appeared to be very high on methamphetamine, asked Sheffield to leave the room. Sheffield complied and slept in the stairwell of the motel that night.
The next morning, Sheffield was helping his friend, Leonard Hensley, another resident of the motel, install speakers in Hensley’s car. Defendant arrived in his vehicle with another person, and requested that Sheffield come to his room to talk. Defendant still appeared to be high, but was “a little more mellow.” He appeared distracted, as if something was on his mind.
Sheffield followed the two men into the motel room and sat on the bed. Defendant accused Sheffield of being a police officer, but Sheffield denied it. At that point, the other man grabbed and restrained Sheffield, while defendant punched him repeatedly. Sheffield tried to fight back, but could not do much.
The other man left the room, while defendant continued the assault, with Sheffield trying vainly to fight back. The fight ended abruptly.
Defendant told Sheffield to go wash his face, since it was bloodied and bruised. After Sheffield did so, defendant offered him a cigarette and the two smoked together. Defendant then removed the belt out of his waistband and Sheffield felt something was not quite right. Sheffield tried to leave the room, but defendant pushed the door shut. Defendant then began strangling Sheffield with the belt. Sheffield was unable to breathe and passed out.
Hearing the commotion, Hensley and a friend came upstairs and found the belt outside the room. The two men then transported Sheffield to the hospital.
Sheffield was treated at the emergency room. He was semiconscious, and had ligature marks on his neck. He also had abrasions about his upper torso, cheek bones and mouth area. One eye was red and slightly swollen. He was released that afternoon.
Defendant fled after the incident, but soon returned to the motel, where he was arrested.
A. Trial Guilt Phase
Defendant was charged with attempted murder, aggravated assault, assault with personal use of a deadly weapon, battery with serious bodily injury and false imprisonment by force or violence. The information contained enhancement allegations regarding the infliction of great bodily injury and personal use of a deadly weapon. It was also alleged that defendant sustained numerous prior serious felonies for purposes of the three strikes law and serious felony enhancements under sections 667.5 and 667, subdivision (a)(1).
Defendant pleaded not guilty and not guilty by reason of insanity. At the end of the prosecution’s case at the guilt phase, the trial court granted the defense motion to dismiss the great bodily injury (§ 12022.7, subd. (a)) allegation.
In the guilt phase of trial, the jury acquitted defendant of attempted murder but convicted him on the remaining counts. The jury also found personal use and great bodily injury enhancement allegations to be true as to three of the charged counts.
B. Sanity Phase
Background
The defense presented evidence that defendant had spent time in Pelican Bay State Prison, where he had testified against a member of the Mexican Mafia, who was eventually convicted. The Mafia has a practice of eliminating witnesses who have testified against its members. After his testimony, there were threats against defendant and he expressed fear for his safety.
An attorney who assisted defendant in a parole violation case testified that she observed defendant a couple of days before the arrest. He acted paranoid, voicing fears that people were out to get him.
Defendant appeared confused and disoriented at the time of his arrest. Samples of defendant’s blood and urine, taken shortly after his arrest, tested positive for methamphetamine and marijuana.
Dr. Sokolov
Dr. Gregory Sokolov testified on behalf of the defense. He diagnosed defendant with schizoaffective disorder, exacerbated by the use of methamphetamine. Sokolov opined that at the time of the offense defendant did not comprehend the nature and quality or the moral wrongfulness of his acts. When he committed the crime, defendant was in a psychotic and paranoid delusional state, but his mental disorder was a preexisting condition that was not caused by his use of controlled substances.
Dr. Nelson
Dr. Sidney Nelson, a forensic and clinical psychologist, testified for the prosecution. He was appointed by the court to evaluate defendant’s sanity. Defendant told Nelson that he began injecting methamphetamine and smoking marijuana a week prior to the offense. The doctor believed that defendant did suffer psychotic-like symptoms on the date of the offense, but that his condition was entirely drug-induced and that he was exaggerating his symptoms.
Dr. Nelson administered the Millon Clinical Multiaxial Inventory (MCMI) test, but the computer rejected the results because defendant reported too many extreme symptoms, raising a red flag as to the reliability of defendant’s information. Defendant was given the Miller Forensic Assessment of Symptoms test to assess malingering. Any score greater than 6 is indicative of malingering. Defendant scored a 15.
Dr. Nelson disagreed with Dr. Sokolov’s diagnosis of schizoaffective disorder, believing that Dr. Sokolov did not take into account defendant’s significant history of drug abuse and failed to give sufficient weight to defendant’s malingering.
Dr. Ebert
Dr. Bruce Ebert, another court-appointed forensic and clinical psychologist, evaluated defendant to determine his sanity. He administered the MCMI test on defendant but could not obtain a valid result, because defendant was reporting too many psychiatric symptoms, “which would be virtually impossible to exist.” Ebert diagnosed defendant as having an antisocial personality disorder with psychopathic features, accompanied by a severe case of methamphetamine abuse. He “absolutely” disagreed with Dr. Sokolov’s diagnosis of schizoaffective disorder, finding no evidence of it. He opined that defendant was sane at the time of the offense, but under the influence of a “highly toxic drug” that “explains all of his symptoms.”
The jury returned a verdict finding defendant sane at the time of the offenses.
DISCUSSION
I. Refusal of Defense Proposed Special Instruction No. 2
The trial court instructed the jury in the language of former CALCRIM No. 3450, in pertinent part, as follows:
References to CALCRIM No. 3450 are to the former version of the instruction as set forth here on pages 7 to 9, unless otherwise indicated.
“The defendant must prove that it is more likely than not that he was legally insane when he committed the crimes. The defendant was legally insane if, number one, when he committed the crimes, he had a mental disease or defect; and, number two, because of that disease or defect, he did not know or understand the nature and quality of his act or did not know or understand that his act was morally or legally wrong.
“None of the following qualify as a mental disease or defect for purposes of an insanity defense: Personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts.
“If the defendant suffered from a settled mental disease or defect caused by the long-term use of drugs or intoxicants, that settled mental disease or defect combined with another mental disease or defect may qualify as legal insanity.
“A settled mental disease or defect is one that remains after the effects of the drugs or intoxicants have worn off.
“You may consider any evidence that the defendant had a mental disease or defect before the commission of the crimes. If you are satisfied that he had a mental disease or defect before he committed the crimes, you may conclude that he suffered from the same condition when he committed the crimes. You must still decide whether that mental disease or defect constitutes legal insanity. [¶]... [¶]
“If you conclude that at times the defendant was legally sane and at other times the defendant was legally [insane], you must assume [italics added] that he was legally sane when he committed the crimes. If you conclude that the defendant was legally sane at the time he committed the crimes, then it is no defense that he committed the crimes as a result of an uncontrollable or irresistible impulse.
At this point in the transcript, the judge read the word as “sane” (a reading that would have rendered the entire sentence a nonsensical tautology), but at defense counsel’s request, immediately corrected this error and reread the sentence substituting the word “insane,” so that the charge correctly tracked CALCRIM No. 3450.
We have italicized the words “must assume” to indicate problematic language, which will become clear in our later discussion.
“If, after considering all of the evidence, all 12 of you conclude that the defendant has proved that it is more likely than not that he was legally insane when he committed the crimes, you must return a verdict of not guilty by reason of insanity.”
With the concurrence of both counsel, the first bracketed paragraph of CALCRIM No. 3450 was not given. That paragraph reads as follows:
“[Special rules apply to an insanity defense involving drugs or alcohol. Addiction to or abuse of drugs or intoxicants, by itself, does not qualify as legal insanity. This is true even if the intoxicants cause organic brain damage or a settled mental disease or defect that lasts after the immediate effects of the intoxicants have worn off. Likewise, a temporary mental condition caused by the recent use of drugs or intoxicants is not legal insanity.]”
Defense counsel proposed his own instruction on the subject (Special Instruction No. 2), which read: “A person shall not be found to be legally insane when the sole or only basis for the mental disease or mental defect is a personality disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances. A person who has an Axis I mental disease or defect which is aggravated by the abuse of an intoxicating substance may be found legally insane.” (Italics added.) The trial court refused to give the proposed instruction, ruling that the concepts therein were already covered by CALCRIM No. 3450.
Defendant contends the trial court prejudicially erred in refusing Special Instruction No. 2. He claims the instruction was a necessary pinpoint instruction, which supported the defense contention that he was suffering from a mental disease that was aggravated by his use of methamphetamine at the time of the offense. We apply a de novo standard of review to this claim. (See People v. Posey (2004) 32 Cal.4th 193, 218.)
A trial court is required to instruct a jury on the general principles of law that are relevant to the issues raised by the evidence in a given case. (People v. Valdez (2004) 32 Cal.4th 73, 115.) In addition, “‘a defendant has a right to an instruction that pinpoints the theory of the defense.’” (People v. Roldan (2005) 35 Cal.4th 646, 715, disapproved on different grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) However, a trial court need not give a pinpoint instruction if it merely duplicates other instructions. (People v. Bolden (2002) 29 Cal.4th 515, 558-559.)
Defendant has no cause for complaint about the failure to give the first sentence of proposed Special Instruction No. 2, which read, “A person shall not be found to be legally insane when the sole or only basis for the mental disease or mental defect is a personality disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances.” (Italics added.) With the exception of the reference to intoxicants, the identical concept was conveyed to the jury through the second paragraph of CALCRIM No. 3450. (See pp. 7-8, ante.)
The italicized portion of Special Instruction No. 2 iterates the same concept contained in the bracketed paragraph of CALCRIM No. 3450, i.e., that a mental disease or defect caused solely by the use of intoxicants does not constitute insanity. (See p. 9, ante.) But, as noted, defense counsel agreed to omit the bracketed paragraph, since all experts agreed defendant’s abnormal mental state was not caused exclusively by drug use. (See People v. Robinson (1999) 72 Cal.App.4th 421, 429; see Bench Notes to CALCRIM No. 3450 (Apr. 2008 rev.) p. 1019.) Counsel’s agreement had a plausible tactical purpose the omission obviously benefited defendant, who was high on methamphetamine at the time of the crime. Since defendant acquiesced to the omission, he may not now reverse course on appeal: The doctrine of invited error applies to bar defendant from pursuing the claim further. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
The second sentence of proposed Special Instruction No. 2 told the jury that an Axis I disorder aggravated by drug use may qualify as insanity. The same concept is covered by that portion of the CALCRIM No. 3450 instruction that told the jury that a settled mental disease caused by the use of intoxicants coupled with another mental disease not so caused may qualify as insanity. “A defendant is not entitled to have the jury instructed in any particular terms if the instruction given adequately conveys the correct rule of law.” (People v. Cox (1991) 53 Cal.3d 618, 674, disapproved on different grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Defendant had no right to an instruction drawing attention to Dr. Sokolov’s diagnosis that he had an “Axis I disorder.” An instruction that invites the jury to draw an inference favorable to one side from highlighted evidence may be refused as improperly argumentative. (People v. Earp (1999) 20 Cal.4th 826, 886.)
Any error in the refusal to give proposed Special Instruction No. 2 was also harmless. The erroneous denial of a proposed pinpoint instruction is measured under the test of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Wharton (1991) 53 Cal.3d 522, 571.) The trial judge told defense counsel that he would give him “full leeway” to argue his theory to the jury and that is exactly what happened. In closing argument, defendant’s attorney expounded at length upon Dr. Sokolov’s testimony that defendant had a settled mental defect, schizoaffective disorder, that was greatly exacerbated by his use of methamphetamine. At no point did the prosecutor object to this line of argument. Since defendant was allowed free reign to explore the theme embraced by the proposed instruction, it is not reasonably probable a different verdict would have resulted had the instruction been given. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144; People v. Wharton, supra, 53 Cal.3d at p. 572.)
II. CALCRIM No. 3450’s “Directed Verdict” Language
As noted, the jury was instructed with CALCRIM No. 3450, including the sentence which then read: “If you conclude that at times the defendant was legally sane and at other times the defendant was legally insane, you must assumethat he was legally sane when he committed the crimes.” (Italics added.)
In People v. Thomas (2007) 156 Cal.App.4th 304, a different panel of this court criticized the subject sentence, holding that, when viewed in isolation, it was potentially misleading. (Id. at pp. 309-310.) However, Thomas rejected the claim that the sentence imposed an impermissible presumption of guilt, concluding that the instruction was free from prejudicial error when CALCRIM No. 3450 is considered as a whole. (Thomas,at pp. 310-311.)
Relying on Thomas, defendant claims the giving of the quoted sentence requires a new sanity phase trial because it “erroneously directed a verdict of sanity.” While touting Thomas’s criticism of the instruction, defendant invites us to reject Thomas’s concomitant determination that its inclusion in CALCRIM No. 3450 does not create prejudicial error.
We agree that the sentence is problematic. It is common knowledge that even insane persons have lucid intervals, and the instruction appears to tell the jury that unless the defendant was continuously insane for some indeterminate period, they must presume he was sane at the time of the offense. That is clearly not the law, and it is perhaps for this reason that the sentence has since been modified in subsequent versions of the instruction.
Unlike the version of CALCRIM No. 3450 that was given in Thomas, which told the jury that if defendant was sometimes sane and sometimes insane “you must assume” he was legally sane when he committed the crime, the present version of CALCRIM No. 3450, effective April 1, 2008, now instructs that “you must determine whether [the defendant] was legally sane” at the time of the offense. (Italics added.)
Because the sentence appears to create an impermissible presumption that defendant is required to overcome, we disagree with Thomas to the extent it suggests that giving CALCRIM No. 3450 can never result in prejudicial error. A criminal jury instruction that creates an impermissible presumption is normally measured by the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]. (People v. Roder (1983) 33 Cal.3d 491, 504.)
That having been said, we find no prejudicial error under the facts of this case. Defendant does not dispute that CALCRIM No. 3450 correctly stated the law in all other respects. It told the jury that a settled mental disease or mental defect that prevented defendant from understanding the wrongfulness of his act could qualify as insanity. It also told the jury that if it found, after considering all of the evidence, that defendant was insane when he committed the crimes, it must return a verdict of not guilty by reason of insanity. Finally, the jury was instructed that when the evidence showed that defendant was at times sane and at other times insane, he had the burden of proving by a preponderance of the evidence that he was insane at the time of the crimes.
Moreover, the evidence of insanity in this case was weak. Both of the court-appointed psychologists testified that defendant did not suffer from schizoaffective disorder and both noted significant clinical evidence that he was faking his symptoms. Defendant’s undisputed history of methamphetamine abuse and failure to report psychotic symptoms for at least a month after his arrest also strongly indicated that his “psychosis” on the date of the offense was drug-induced.
“[I]n the case of an erroneous presumption, ‘[t]he issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption.’” (People v. Flood (1998) 18 Cal.4th 470, 506, quoting Yates v. Evatt (1991) 500 U.S. 391, 404 [114 L.Ed.2d 432, 449].) For all the foregoing reasons, we are satisfied that the jury’s verdict did not rest on the misleading presumption contained in CALCRIM No. 3450. The error was harmless beyond a reasonable doubt.
III. Denial of Romero Motion
Defendant admitted 10 prior serious or violent felonies under the three strikes law. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) Following the verdict, defendant filed a motion requesting that the court exercise its discretion to strike all of the strikes except one under Romero, supra, 13 Cal.4th 497. The motion recounted defendant’s history of childhood abuse, mental illness and cooperation with authorities while in prison. It also pointed out that all of the strike offenses took place during a one-week crime spree in 1997.
The trial court denied the motion. After reciting the factors listed in defendant’s motion and admitting that he had “wrestled with this,” the trial judge concluded: “So the question before me is whether or not the Court can find a way to deem him outside the spirit of the Three Strikes Law based on the factors applicable to all cases and to be able to grant the Defense request to strike all but one strike. [¶] Certainly, the Court entertains the concept of mercy in cases in all cases, and in this case there are some some compelling arguments. The bottom line, however, is constrained as I am by the law and the case law, I am just not able to find a method by which to bring this to a one-strike disposition. The [section] 459 was committed separately. A first degree burglary, very serious, the [section] 211 in L.A. was a separate offense 450 miles away and then the other--the--the carjackings. The motivations may have been the same, and apparently the last two could have been drugs, who knows, but very, very serious offenses committed at different times and places. [¶]... [¶] The motion to strike strikes under [Romero] is hereby denied.” (Italics added.)
Focusing on the italicized language, defendant contends the cause must be remanded for resentencing because the trial court erroneously believed that it lacked discretion to grant the requested relief.
Trial courts retain discretion to strike prior serious or violent felony convictions under section 1385 in the interests of justice. (Romero, supra, 13 Cal.4th at pp. 529-530.) Where the record reveals the sentencing court was unaware of its discretion, a defendant is entitled to remand for resentencing. However, a sentencing court is not affirmatively required to state on the record what discretionary power it has and how it chooses to exercise that discretion. (People v. Gillispie (1997) 60 Cal.App.4th 429, 433.) Unless the party claiming error shows that the sentencing court misunderstood its discretion, a reviewing court may not set aside the sentencing decision. (People v. Fuhrman (1997) 16 Cal.4th 930, 945.)
Defendant’s argument must be rejected. At no point in the proceedings did the court state or imply that it had no discretion to grant the Romero motion or that it would have granted leniency absent a belief that it lacked discretion. Rather, the transcript shows the court carefully weighed the Romero factors pro and con, and came to the difficult conclusion that it simply could not, consistent with case precedent, deem defendant outside the spirit of the three strikes law.
In the absence of an affirmative indication to the contrary, the reviewing court must presume the sentencing court correctly applied the law. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) We find no affirmative indication in the record that the court failed to understand its discretionunder Romero. Accordingly, defendant’s claim of error must be rejected.
IV. Prior Prison Term Enhancement
Although the trial court did not grant the Romero motion as to any of defendant’s 10 prior serious or violent felony convictions, defense counsel pointed out that it still had discretion to dismiss the prior prison term allegations. When asked to respond, the prosecutor submitted the issue without argument. The court then stayed the one-year prison enhancement (§ 667.5) “in the interest of justice.”
Defendant points out and the People agree that the court should not have issued a “stay,” but should have either imposed or stricken the section 667.5 enhancement. (People v. Jones (1992) 8 Cal.App.4th 756, 758.) The People request that we remand for resentencing, while defendant contends the appropriate disposition is to strike the enhancement. We agree with defendant.
Defense counsel asked the court to “dismiss the prior prison term” (italics added) and the prosecutor did not oppose the request. In staying the sentence, the court used the phrase “in the interest of justice,” which closely tracks the language of section 1385, subdivision (a) authorizing dismissal. The trial court’s intention to grant leniency is clear. Accordingly, we see no need for a remand and shall order the enhancement stricken.
V. Section 4019
The recent amendments to section 4019 do not entitle defendant to additional time credits because he was committed in this case for “serious” felonies. (§ 4019, subds. (b)(1), (2) & (c)(1), (2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50; see § 1192.7, subd. (c)(23), (31).)
DISPOSITION
The judgment is modified by striking the stayed one-year prison term enhancement under section 667.5. The trial court shall direct the clerk to prepare an amended abstract of judgment and forward a certified copy to the Department of
Corrections and Rehabilitation. So modified the judgment is affirmed.
We concur: SIMS, Acting P. J. CANTIL-SAKAUYE, J.