Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 02F10894
SCOTLAND, P. J.
Defendant Robert Fuentes, an inmate at California State Prison, Sacramento (CSP-Sacramento) (formerly Folsom State Prison and New Folsom), was charged with attempted premeditated murder (count one), assault by an inmate serving a life sentence (count two), and possession of a weapon by an inmate (count three). The information alleged as to counts one and two that defendant inflicted great bodily injury; it also alleged that he had suffered a prior serious felony conviction. Defendant pled not guilty and not guilty by reason of insanity.
In the guilt phase of trial, the jury convicted defendant on all counts and found the great bodily injury allegation true. In the sanity phase, the jury found him legally sane. In a bifurcated proceeding, the trial court found the prior serious felony conviction allegation true.
The trial court sentenced defendant to life without eligibility for parole for 18 years on count two and imposed a five-year enhancement for the prior felony conviction. The court stayed sentence on counts one and three.
Defendant contends that the trial court’s instruction on the insanity defense violated state and federal due process, and that trial counsel was ineffective in failing to object to the instruction. We shall affirm defendant’s conviction and sentence, but order the correction of the abstract of judgment.
BACKGROUND
Guilt Phase
On July 28, 2002, Officer Chris Green, on duty as the yard gunner for the administrative segregation unit at CSP-Sacramento, saw inmate Patrick Contreras approach defendant in the yard. Officer Green then saw defendant clench his fist and twice jab at Contreras’s chest.
After the other inmates were ordered out of the yard, Contreras was found bleeding in the chest from stab wounds. Defendant had blood on his shirt and hands, and a knife was found in the yard.
Defendant’s former cellmate, Raymond Vara, serving a life sentence for murder, testified that he, not defendant, stabbed Contreras.
The parties stipulated that defendant was serving a life sentence at the time of the offense.
Sanity Phase
Defendant testified as follows:
He was serving a term of 17 years to life at Folsom State Prison for a 1984 homicide conviction. He was convicted of possessing a weapon in prison in 1985.
In May 1990, defendant was transferred to New Folsom, where he spent about a year on the main line. However, after prison officials validated him as a gang member, he was returned to the Pelican Bay SHU, where he remained from April 1991 until January 2001, sharing a cell with Raymond Vara.
In 1988 and 1989, defendant was housed in the Secure Housing Unit (SHU) at California State Prison, Corcoran. He was then transferred to Pelican Bay State Prison, where he spent six months in that prison’s SHU.
Confinement in the Pelican Bay SHU meant remaining in a small, poorly lit cell for 23 hours a day, with one hour for exercise in a small prison yard lacking equipment. The guards fed SHU inmates on trays which they slid through small slots into the cells. The inmates could shower only three times a week.
Defendant’s long stay in the Pelican Bay SHU changed him significantly, to a point where he felt like a dead man and suffered memory loss.
In January 2001, defendant was retransferred to CSP-Sacramento. After a while, the prison’s gang investigator said defendant would be sent back to the Pelican Bay SHU, which upset him greatly and made him feel as though everything was being taken away from him.
Defendant did not remember stabbing anyone on June 28, 2002, even after viewing a videotape of the day’s events. He had had recurring memory problems since then.
On cross-examination, defendant admitted he remembered that he was in the holding cage after the stabbing and that Raymond Vara was his cellmate at the time.
Raymond Vara testified that when he and defendant were housed together at Pelican Bay, defendant would sometimes get angry and violent, then break down and cry; defendant sometimes talked to himself and had memory problems. At CSP-Sacramento, after defendant was placed in administrative segregation, he and Vara again became cellmates. Vara saw defendant starting to act strangely, as at Pelican Bay, and growing more angry as he became convinced he would be sent back there. According to Vara, defendant was very quiet and calm before the stabbing of Contreras, but afterward looked angry, talked to himself, and paced back and forth in their cell.
Two court-appointed expert witnesses testified for the prosecution. Both opined that defendant was legally sane at the time of the offense.
Dr. John Chamberlain, a forensic psychiatrist who has done 700 to 800 evaluations for legal sanity, interviewed defendant in prison in August 2006. According to Dr. Chamberlain, though defendant claimed not to remember the crime, he clearly remembered his circumstances and his feelings about them a month, a week, and a day before the crime. A month before the crime, he was in the general prison population, “doing all right,” not using drugs or alcohol, not undergoing mental health treatment, not having any problems with the prison gang officer, and preparing for transfer to another prison closer to home with better job opportunities. A week before the crime, however, he was placed in “the hole,” after which he felt tense, nervous, and stressed out, and did not know whether he would stay at CSP-Sacramento or be sent back to Pelican Bay. The day before the crime, things were more intense because he had been in custody longer; he was shouldering “a load” (being in custody) that was “getting heavier”; he felt they wanted to send him back to “the Bay,” which he “didn’t enjoy,” but he did not “giv[e] a... fuck” and had no plans to kill himself.
As to the date of the crime, defendant remembered being in his cell before going out in the yard, then hearing an alarm going off from a different incident while he was in the yard; his next memory was of being in a holding cage. However, he denied a history of blackouts.
Defendant denied being under mental health treatment in August 2006, when Dr. Chamberlain interviewed him. He had never attempted suicide, been treated in a psychiatric inpatient facility, or received psychiatric medications. He claimed to have suffered head injuries from time to time. He admitted using illegal substances, but did not appear to have a substance disorder. He denied any history of depression or mania. There was no indication of hallucinations, delusions, obsessive-compulsive disorder, or socio-active disorder. His affect was not remarkable in any way. He described his mood as “just there.”
Defendant’s mental status was also within the normal range on a battery of tests administered by Dr. Chamberlain.
Dr. Chamberlain opined that defendant did not meet the criteria for mental disease, defect, or disorder, either at the time of the offense or at the time of the interview. Though he was under stress at the time of the offense, it was not excessive given his situation -- being in prison is stressful. He showed no evidence of any condition that would interfere with his ability to understand the nature and quality of his acts; to distinguish right from wrong; to predict the natural and probable consequences of his acts; to make a plan of action; to act in a purposeful and goal-directed way to execute such a plan; to act in a considered, calculated, controlled way; or to understand and consider the lawful rights of others.
Daniel Edwards, Ph.D., a clinical psychologist and forensic neuropsychologist, evaluated defendant in prison in October 2006. Dr. Edwards administered memory and mental state tests, which showed that defendant was making a good effort and functioning normally. Dr. Edwards then obtained defendant’s history and his account of the crime.
Defendant told Dr. Edwards that he had been in prison since 1984, sentenced to 17 years to life for second degree murder, and had spent most of his time in prison in “the hole” for disciplinary reasons. He had spent time at Pelican Bay, which he considered his “home.” He said prison was a very dangerous place where you never know what other inmates or guards will do.
As to the crime, defendant said he did not know the victim, had never talked to him, and had no memory of stabbing him or of having a weapon that day. However, he had seen the videotape and was prepared to believe he did the crime, even though he did not remember it. He theorized that he must have felt threatened and acted out of an automatic response, possibly because he had been shot at and almost hit in the same spot in the yard or because there was another alert at the same time nearby. He did not know how he came to have the knife. He insisted that he was not crazy.
Because defendant’s attorney had suggested defendant suffered from post-traumatic stress disorder, Dr. Edwards looked for evidence of any such disorder. He also looked for a history of head injuries or possible organic brain syndrome, especially after defendant said sheriff’s deputies had twice choked him unconscious. However, defendant indicated that he had returned to normal within a day or two after each episode of unconsciousness. The last time he passed out in his cell, an MRI showed no abnormality. He was in treatment for high blood pressure, back pain, and headaches.
As with Dr. Chamberlain, defendant denied any history of psychiatric treatment or medication, hallucinations, delusions, current or past depression, and suicidal or homicidal ideation. He said he sometimes had “racing thoughts,” but it did not sound like a manic state. He denied ever having had a traumatic experience where his life or physical integrity was threatened.
Defendant described a few chronic physical problems, including high blood pressure, back pain, headaches, numbness in his fingers and toes, and tinnitus. His memory was “kind of variable.” He claimed no problems doing everyday life activities.
Dr. Edwards opined that defendant did not presently suffer from a mental disease, defect, or disorder, so far as could be determined. Though defendant claimed amnesia for events before and after the crime, both his immediate and long-term memory seemed intact. There was no evidence of psychosis or post-traumatic stress disorder, despite the high stress of the prison environment. Defendant claimed he did not dwell on disturbing events, as a sufferer from post-traumatic stress disorder would do; he also did not claim bad dreams or flashbacks.
Dr. Edwards opined further that it was not probable defendant suffered from a mental disease, defect, or disorder at the time of the offense. His ability to understand the nature and quality of his acts, to predict the natural and probable causes of his acts, to distinguish right from wrong, to make and execute a plan of action, and to act with consideration and calculation, were all intact at the time of the interview, and there was no evidence that things were different at the time of the offense. Although defendant suffered from antisocial tendencies which could impair his capacity to understand and consider the lawful rights of others, there was no basis for finding a major mental disorder at the time of the offense.
DISCUSSION
The trial court gave Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 3450, the standard instruction on the insanity defense, as follows:
“You have found the defendant guilty of [a]ttempted [m]urder. Now you must decide whether he was legally insane when he committed the crime.
“The defendant must prove that it is more likely than not that he was legally insane when he committed the crime.
“The defendant was legally insane if:
1. When he committed the crime, he had a mental disease or defect;
AND
2. 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.
“You may consider any evidence that the defendant had a mental disease or defect before the commission of the crime. If you are satisfied that he had a mental disease or defect before he committed the crime, you may conclude that he suffered from that same condition when he committed the crime. You must still decide whether that mental disease or defect constitutes legal insanity.
“If you find the defendant was legally insane at the time of his crime, he will not be released from custody until a court finds he qualifies for release under California law. Until that time he will remain in a mental hospital or outpatient treatment program, if appropriate. He may not, generally, be kept in a mental hospital or outpatient program longer than the maximum sentence available for his crime. If the state requests additional confinement beyond the maximum sentence, the defendant will be entitled to a new sanity trial before a new jury. Your job is only to decide whether the defendant was legally sane or insane at the time of the crime. You must not speculate as to whether he is currently sane or may be found sane in the future. You must not let any consideration about where the defendant may be confined, or for how long, affect your decision in any way.
“If you conclude that at times the defendant was legally sane and at other times the defendant was legally insane, you must assume that he was legally sane when he committed the crime.
“If you conclude that the defendant was legally sane at the time he committed the crime, then it is no defense that he committed the crime as a result of an uncontrollable or irresistible impulse.
“If, after considering all the evidence, all twelve of you conclude the defendant has proved that it is more likely than not that he was legally insane when he committed the crime, you must return a verdict of not guilty by reason of insanity.” (Italics added.)
Defendant objected to the second of the paragraphs we have italicized, but not to the first. He now contends that, as the facts of this case, both paragraphs prejudicially misstated the law. He also contends trial counsel was ineffective for failing to object to the first italicized paragraph.
I
Defendant contends the instruction violated his state and federal due process rights by telling the jury: “If you conclude that at times the defendant was legally sane and at other times the defendant was legally insane, you must assume that he was legally sane when he committed the crime.” This is so, he argues, because it constituted an impermissible, mandatory, irrebuttable “presumption [of sanity that] precluded the jury from considering [his] defense that he was legally insane at the time of the offense.”
CALCRIM No. 3450 no longer contains this challenged part of the instruction. The Judicial Council of California has revised the paragraph to read instead: “You may find that at times the defendant was legally sane and at other times was legally insane. You must determine whether (he/she) was legally insane when (he/she) committed the crime.” (CALCRIM No. 3450, revised April 2008.)
Thus, if we conclude the giving of the former paragraph in this case was harmless beyond a reasonable doubt, we need not decide whether People v. Thomas (2007) 156 Cal.App.4th 304 correctly held that, although the paragraph “could be misleading” when “viewed in isolation,” it is not when viewed in context with the other language of the instruction; reasonable jurors would have understood that an “assumption of sanity, like an assumption of innocence, is just another way of saying the burden is on the party claiming otherwise to prove it.” (Id. at pp. 310-311.)
Defendant asserts that he was harmed by the instruction since he presented substantial evidence that (a) he became legally insane due to his 10 years in the Pelican Bay SHU; (b) the symptoms of his legal insanity returned shortly before he committed the crime, when he learned that he would be sent back to Pelican Bay; and (c) in between those times, when he was back at CSP-Sacramento on the main line, functioning well, he was legally sane. Therefore, defendant says, the paragraph at issue precluded jurors from considering the evidence in classes (a) and (b) because of the evidence in class (c).
The contention fails because there was no substantial evidence, from any source, indicating defendant was legally insane at any time.
The trial court correctly instructed the jurors that defendant was legally insane if: “1. When he committed the crime, he had a mental disease or defect; [¶] AND [¶] 2. 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.”
But there was no expert testimony that defendant was legally insane at any time. To the contrary, both experts who testified at trial, Dr. Chamberlain and Dr. Edwards, opined that defendant was legally sane at the time of the crime and when they interviewed him for the mental health evaluation. Both testified that he denied any history of psychiatric treatment or medication, and denied having any hallucinations, delusion, current or past depression, or suicidal or homicidal ideation.
Defendant did testify at trial that, due to his incarceration in the SHU, he felt like a dead man and suffered memory loss. However, memory problems do not equate with legal insanity. Nothing in his testimony suggested that, when he stabbed the victim, defendant had a mental disease or defect. And nothing in defendant’s testimony indicated that, when he committed the crime, he did not know or understand the nature or quality of the act or did not know or understand that it was morally or legally wrong. That he purportedly could not remember what happened afterward is not substantial evidence that he was legally insane at the time of the crime.
Likewise, inmate Raymond Vara’s testimony was not substantial evidence to support a finding of legal insanity. According to Vara, defendant had memory problems; would sometimes get angry and violent, then break down and cry; sometimes talked to himself; grew more angry when he became convinced he would be sent back to the Pelican Bay SHU; and was very quiet and calm before stabbing the victim, but afterward looked angry, talked to himself, and paced back and forth in the cell. However, this evidence does not reasonably tend to show that defendant did not know or understand the nature or quality of the act or did not know or understand that it was morally or legally wrong.
Consequently, assuming for the sake of discussion that the challenged paragraph of CALCRIM No. 3450 was erroneous, instructing the jury with it was harmless beyond a reasonable doubt.
II
Defendant contends the other paragraph of CALCRIM No. 3450 which we have highlighted was erroneous and prejudicial on the facts of this case. Because trial counsel did not object to this paragraph, defendant additionally claims that counsel was ineffective. We conclude the instruction was legally correct and could not have prejudiced defendant. Therefore, we also conclude trial counsel’s failure to object was not ineffective assistance.
As noted above, the paragraph of CALCRIM No. 3450 at issue instructs in part: “If you find the defendant was legally insane at the time of his crime, he will not be released from custody until a court finds he qualifies for release under California law. Until that time he will remain in a mental hospital or outpatient treatment program, if appropriate. He may not, generally, be kept in a mental hospital or outpatient treatment program longer than the maximum sentence available for his crime.... You must not let any consideration about where the defendant may be confined, or for how long, affect your decision in any way.” (Italics added.)
Defendant contends: The trial court erred prejudicially by instructing that defendant could be released into an outpatient treatment program. First, this instruction wrongly told the jury that if it found him insane he would be released when his sanity was restored -- a factual and legal impossibility because he was already serving a life sentence for murder even before his current conviction. Second, the instruction was erroneous in suggesting that he could be released as an outpatient without explaining the additional criteria to be satisfied for outpatient treatment under Penal Code section 1026.2, subdivision (m) (applying to “persons who, at the time of the petition or recommendation for restoration of sanity, are subject to a term of imprisonment with prison time remaining to serve”). Finally, because the jury was legally misled by the instruction, it might have rejected his insanity defense without regard to its merit, simply to foreclose these impossible or extremely unlikely options. We are not persuaded.
Specifically, it must be shown that (1) the defendant served at least 180 days in a state mental health hospital, (2) the director of the state hospital found the defendant is no longer a danger to himself or others, (3) the director recommends that defendant will benefit from outpatient status, (4) the court has a hearing to consider the director’s recommendation as well as the circumstances of the crime and the defendant’s criminal history, and (5) the court approves the recommendation. (Cf. Pen. Code, §§ 1026, subd. (a), 1601, subd. (a), 1603, subd. (a), 1604, subds. (c) & (d).)
CALCRIM No. 3450, like its predecessor, CALJIC No. 4.01, was designed to protect defendants by alleviating jurors’ possible fears that a defendant found not guilty by reason of insanity would be released into the community. (People v. Kelly (1992) 1 Cal.4th 495, 538.) Read fully and in context, the challenged paragraph of CALCRIM No. 3450 serves that purpose.
The paragraph states unequivocally: “If you find the defendant was legally insane at the time of his crime, he will not be released from custody until a court finds he qualifies for release under California law.” The reference to an outpatient treatment program is qualified by the words “if appropriate.” This language protects the defendant and alleviates any possible juror concern about his possible release into the community on a finding of insanity. (Kelly, supra, 1 Cal.4th at p. 538.) And the paragraph ends by admonishing the jury not to concern itself with “where the defendant may be confined, or for how long[.]” Absent contrary evidence (which defendant does not cite), we presume the jurors followed the court’s instructions. (People v. Davenport (1995) 11 Cal.4th 1171, 1210.)
We also reject defendant’s claim that the instruction was required to inform the jury in exhaustive detail of all the steps required by statute before a person confined in prison may be released to outpatient treatment. The statutory outpatient procedures and requirements are not relevant to the jury’s task of determining the defendant’s sanity at the time of the offense. (See People v. Hart (1999) 20 Cal.4th 546, 656.) And, as we have already noted, the instruction as a whole clearly and correctly tells the jury not to consider such matters.
Because this paragraph of instruction as given was not erroneous, trial counsel had no meritorious ground on which to object to it. Therefore, his failure to object did not constitute ineffective assistance of counsel.
III
Defendant has called our attention to errors in the abstract of judgment which require correction. First, as mentioned above, the trial court imposed a term of life without parole eligibility for 18 years as to count two, but the abstract reflects a term of life without the possibility of parole. Second, the court stayed sentence as to the charges and enhancements on counts one and three, but the abstract reflects a three-year enhancement on count one and a six-year term on count three. Finally, the court imposed a five-year enhancement for the prior serious felony allegation, but the abstract does not show this enhancement.
We shall direct the trial court to amend the abstract of judgment accordingly. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to correct the clerical errors identified in Part III, ante, and then to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SIMS, J., NICHOLSON, J.